Nienke Leida Hulshof vs State Of Maharashtra And Ors

H. C. Shiv wp.3951.23.doc

IN THE HIGH Court OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. 3951 OF 2023

Nienke Leida Hulshof, Aged 37 years, Occu. Service Permanent resident of Hobostraat 32, 5642 SH EINDHOVEN, NETHERLANDS, Dutch PASSPORT No: NRL2RFB71, Temporarily at Mumbai. .. Petitioner

Versus

1) The State of Maharashtra (Through its Secretary, Department of Home Affairs & Justice, Mumbai.) 2) Amit Siddharth Survase, Aged - 44 years, Occu. Advocate 3) Pushpa Siddharth Survase, Aged - 69 years, Occu. Housewife 4) Sumit Siddharth Survase, Aged - 47 years, Occu. Cinematographer 5) Aryan Siddharth Survase, Aged - 40 years, Occu- lawyer/Manager IT Consultants All are R/A - 11/12, Sankalpana C.H.S. MHADA, SVP Nagar, 4 Bungalows, Andheri West, Mumbai- 400053. .. Respondents

Mr. Anil Malhotra a/w Mrs. Angha Nimbkar, Ms. Shreya Shrivastav Mr.Gulistan Dubash i/b Mr. Durgesh Jaiswal for the Petitioner.

Mr. S. V. Gavand, Additional Public Prosecutor, for Respondent No.1-State,

Mr. Mihir Desai a/w Mr. Navin P. Sachanandani for Respondent Nos.2 to 5.

Mr. Subodh Desai, learned Advocate appointed as amicus curiae.

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CORAM : A. S. GADKARI AND SHYAM C. CHANDAK, JJ.

RESERVED ON : 29th JANUARY 2024 PRONOUNCED ON : 7th FEBRUARY 2024

JUDGMENT [PER: SHYAM C. CHANDAK, J.]

1) Rule. Rule made returnable forthwith and, with the consent of

the learned counsel for the parties, heard finally.

2) This is a Writ Petition under Article 226 of the Constitution of

India for habeas corpus of Ms.'N', i.e. the daughter of Petitioner (hereinafter

referred to as 'child N').

2.1) The Petitioner has prayed for issuance of a writ of habeas corpus

to produce minor child 'N', who is alleged to be in an illegal custody of the

Respondent Nos.2 to 5, for her custody to be given to the Petitioner and for

appropriate directions for the return of child 'N' to the Netherlands; for

issuance of any other appropriate writ, order or Direction to ensure the

compliance of the Order dated 9th November 2023 passed by the Hague

Court at the Netherlands and to direct the Respondent Nos.2 to 5 to provide

all necessary aid, assistance and effective implementation of the directions of

this Court, in securing the safe return of child 'N' to the Petitioner at

Netherlands.

Case of the Petitioner, in brief, is as under:

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3) The Petitioner is a Dutch National and permanent resident of

the Netherlands. The Respondent No.2 is an Indian National and ex-husband

of the Petitioner. Child 'N' is their biological daughter and a Dutch National

by birth. The Respondent Nos.3 to 5 respectively are mother and brothers of

the Respondent No.2.

3.1) The Respondent No.2 was married to the Petitioner in

Netherlands on 5th July 2013, under the Dutch Laws. The Respondent No.2

was granted a residence VISA on 14th December 2017 and was registered as

a resident of the Netherlands. After the marriage, the parties resided with

the parents of the Petitioner. Child 'N' was born on 14 th December 2018 out

of the said wedlock. Thereafter, the parties moved to a house in Eindhoven,

Netherlands on 1st January 2019, which was purchased by the Petitioner.

However, due to incompatibility and differences between the Petitioner and

the Respondent No.2, they decided to part company. Hence, in a Petition for

Divorce, their marriage was dissolved on 28th April, 2023 by a detailed

Judgment and Order of divorce passed by the District Court of East Brabant,

Hertogenbosch, Netherlands. The said Judgment and Order also decided

that, child 'N' shall have main residence with the Petitioner, nevertheless the

Respondent No.2 is entitled to contact with child 'N' as more specifically

mentioned therein.

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3.2) That, the Respondent No.2 wanted to travel to India from 5 th

August 2023 to 19th August 2023, during the summer vacations of child 'N'.

Therefore, the Respondent No.2 filed a Petition in the Court of East Brabant.

By an Order dated 11th July 2023, the said Court granted substitute

permission in lieu of the mother's permission to the Respondent No.2 to

travel to Mumbai, India along with child 'N' for two consecutive weeks i.e.

from 5th August 2023 to 19th August 2023. The Petitioner was directed to

handover OCI Card and passport of child 'N' to the Respondent No.2.

Accordingly, the Respondent No.2 booked the Air Tickets for round trip i.e.

for 7th August 2023 and 16th August 2023.

3.3) Thereafter, the Respondent No.2 approached the competent

Dutch Court for a new passport for child 'N' even though her existing

passport was already given to him in July 2023. However, the said Court by

its Order dated 21st July 2023, granted substitute consent for an urgent

application for the passport. Accordingly, the Respondent No.2 got a new

passport for child 'N' on 22 nd July 2023 which is valid upto 22 nd July 2028,

but with a malafide intention and mens rea of not returning to the

Netherlands. Then, the Respondent No.2 along with the child 'N' left

Netherlands on 8th August 2023 and failed to return from India to the

Netherlands on 16th August 2023, violating his undertaking given to the

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Dutch Court. Thereafter, the Respondent No.2 did not respond to the

telephone/Whats App calls of the Petitioner.

3.4) It is averred that, there was no common intention of the parties

to move back to India as child 'N' was studying in Basis school Boschakker,

Eindhoven, at Netherlands, in the Session 2022-2023. Thus, child 'N' has

been deprived of her life, care and affection of the Petitioner, school friends,

grandparents, school attendance and her bonding with her home country

due to her non returning to the Petitioner by the Respondent No.2. This

uprooting or disrupting of child 'N' is extremely detrimental and damaging

to her best interest and welfare. It has also deprived the Petitioner of her

right over child 'N', as mother and natural guardian.

3.5) Faced with the aforesaid situation, on 7th September 2023, the

Petitioner filed a petition before the District Court of Hague as the Court of

First Instance, seeking immediate return of child 'N' to the Netherlands. The

Respondent No.2 fully contested this proceedings. After evaluating the

relevant material, the said Court by its decision dated 9 th November 2023,

directed return of child 'N' to the Netherlands not later than 28 th November

2023, requiring the respondent No.2 to bring child 'N' back to the

Netherlands, failing which, the Respondent No.2 shall deliver child 'N' to

the Petitioner with the necessary valid travel documents no later than 28 th

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November 2023, so that, the Petitioner can return to the Netherlands herself.

The Respondent No.2 did not comply this Order. Alternatively, he has

refused the request of the Petitioner to deliver child 'N' to her with the

necessary travel documents. The legal notice dated 6 th December 2023 was

also not responded and complied. Thus, by illegally detaining child 'N' in

India, the Respondent No.2 has committed the offence of kidnapping and

abduction punishable under Section 359, 361 and 362 of the Indian Penal

Code, 1860.

3.6) In the facts narrated above present Petition for habeas corpus is

filed.

4) The Respondent No.2 opposed the Petition by entering his

Affidavit-in-Reply dated 5th January 2024, wherein he has categorically

denied all the material averments, allegations and submissions made against

him in the Petition and inter alia contended as under:

4.1) That, after his marriage with the Petitioner, they performed a

ceremony-cum-reception in Mumbai on 23rd December 2013. From 2014,

they resided in Mumbai with the Respondent Nos.3 to 5. During this stay

period, the Petitioner was treated with love and affection. Meanwhile, the

Petitioner was looking for a job in Mumbai. Thus, she was well settled in

Mumbai. The Petitioner's mother was not happy with her marriage with the

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Respondent No.2 and her stay in India. However, at the instance of her

mother, the Petitioner accepted certain job in the Netherlands. Therefore, the

Respondent No.2 shifted to the Netherlands temporarily but as a

co-operation. Before that, the parties lived in India together for a period of

about 3 years. After moving to the Netherlands, the parties resided with the

parents of the Petitioner for about one year. However, the parents of the

Petitioner subjected the Respondent No.2 with racial discrimination in the

form of micro-aggression.

4.2) After birth of child 'N', in January 2019, the parties shifted to a

new home in the Netherlands. The Respondent No.2 took the best possible

care of child 'N' and showered upon her his love, affection etc. by working

from home. As against this, the Petitioner was often out for over-night

parties. There was undesired interference in the life of the parties and child

'N' by the parents of the Petitioner. However, the Petitioner always wanted to

live in India as social life in the Netherlands is harsh for certain reasons.

Therefore, in September 2019, the Petitioner and the Respondent no.2 along

with child 'N' returned to India permanently and resided with other

Respondents. In short time, the Respondent No.2 bought an apartment in

Andheri, Mumbai and took an office on rent. Being a lawyer by profession, it

was difficult for the Respondent No.2 to continue his profession in the

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Netherlands. Gradually, the Petitioner also got certain managerial job in a

Dutch firm, at Mumbai. Thus, the parties happily resided in Mumbai.

However, the Petitioner's mother still wanted the Petitioner to settle in the

Netherlands. Meanwhile, the Petitioner's mother was diagnosed with cancer.

Therefore, on 21st January 2021, the parties along with child 'N' returned to

the Netherlands, temporarily. However, their return to India delayed due

medical treatment of the Petitioner's mother. Meanwhile, the Petitioner

resumed her old job and the respondent No.2 attended his work from home.

Yet, the Respondent No.2's in-laws daily subjected him and child 'N' to racial

discrimination.

4.3) In April 2021, the Respondent No.2 came to India to attend his

work and went back to the Netherlands in June, 2021. However, both in-law

and brother-in-law of the Respondent No.2 kept distance from him. In

August 2021, the Petitioner and the Respondent No.2 were to book tickets

for returning to India. However, the mother-in-law refused for that and

detained with her the passport and OCI card of child 'N' and kept insulting

the Respondent No.2. Meanwhile, the parties were planing a 2 nd child, but

the Petitioner suffered a miscarriage in October 2021. Then the Respondent

No.2 returned to India to meet his ailing father (3 rd November 2021 to 4th

February 2022). During this period, the relation between the parties were

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normal and the Petitioner wanted to return to India but it was cancelled due

to intervention by her mother. However, as child 'N' was missing the

Respondent No.2 and the Petitioner was delaying their return to India, the

Respondent No.2 booked tickets to return to the Netherlands on 18 th

February 2022.

4.4) That, suddenly on 8th February 2022, the Petitioner sent an

e-mail to the Respondent No.2 seeking divorce from him. Hence, he

returned to the Netherlands on 18 th February 2022. On 20th February 2022,

the Petitioner's family tried to book the Respondent No.2 in a false crime.

The Petitioner did not allow the Respondent No.2 to stay in their own house.

This compelled him to register himself as a homeless person and stay in the

Netherlands. The Petitioner stopped talking with him and giving access to

child 'N'.

4.5) Therefore, the Respondent No.2 filed a Petition in the District

Court at East Brabant at' s-Hertegonbosch, Netherlands seeking access to

child 'N'. The Petitioner contested this case vehemently and also filed a

separate divorce Petition on 4th March, 2022 on false grounds to defeat the

aforesaid Petition by Respondent No.2. As a result, the said Petition was

dismissed on 16th March, 2022 on technical grounds. Thereafter, the

Respondent No.2 met with child 'N' on a couple of occasions in the Day-care.

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Thus, since February, 2022 the Petitioner illegally detained child 'N' with her

and did not allow the Respondent to meet her.

4.6) Therefore, on 1st April 2022, the Respondent No.2 filed a

request in the Court dealing with the divorce proceedings, to allow him to

meet child 'N'. Despite resistance from the Petitioner, by Order dated 1 st June

2022, said Court allowed the Respondent No.2 to meet child 'N' for two days

per week, holding that both parents are in joint custody of child 'N'. By

Order dated 18th July 2022, the said Court admitted the divorce petition.

The Respondent No.2 had to go through very difficult and tiring journey to

meet Child 'N'. Meanwhile, the Respondent No.2 purchased an apartment

(in November 2022). Eventually, he was allowed by the Court to keep child

'N' with him on alternate weeks. She was very happy with him and refused

to go back to the Petitioner. However, the Petitioner was rude to the

Respondent No.2. The Petitioner's parents subjected child 'N' to racial

discrimination and abuse on account of her complexion and even told her

that the Respondent No.2 has abandoned her. She was not allowed to learn

Hindi/Marathi. Thus, they wanted to cut her roots from India.

4.7) Ultimately, the divorce Order was passed by the District Court at

East Brabant at' s-Hertegonbosch, Netherlands on 28 th April 2023.

Thereafter, when the Respondent No.2 requested by an e-mail to take child

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'N' to India, the Petitioner refused it by her e-mail dated 4th June 2023. This

compelled the Respondent No.2 to file a Petition in District Court at East

Brabant at 's-Hertegonbosch, Netherlands seeking permission to take child

'N' to India. The said Petition was allowed on 11 th July 2023 despite

opposition by the Petitioner on false grounds. However, the Petitioner

refused to handover the passport and OCI Card of child 'N' in disregard to

the said Court Order. As a result, the Respondent No.2 filed an execution

application wherein for absence of the Petitioner the Court directed her to

handover the passport and OCI of child 'N', failing which she was to be

penalised. The Petitioner thereafter complied the Order.

4.8) The Respondent No.2 then booked return tickets for himself and

child 'N' from 7th August 2023 to 16th August 2023, to visit India. However,

on a false complaint by the Petitioner alleging that taking child 'N' to India is

illegal, Dutch Police illegally detained the Respondent No.2 at the Airport.

Thereafter the Respondent No.2 came to India along with child 'N' on 9 th

August 2023, buying costly tickets.

4.9) That, after coming to India, child 'N' was very happy in the

company of Respondent Nos.2 to 5. That, on 14 th August 2023, just two days

before the return flight to the Netherlands, child 'N' gave various indications

that, she is not willing to go to the Petitioner because of the mental abuses

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she suffered in her family. Therefore, the Respondent No.2 decided that

returning to the Netherlands is not in the best interest of child 'N' as she is

very much attached to him, it would deprive her love from the Respondents'

family and other social bindings. She has been admitted in a school at

Mumbai. The child psychologist's report countenanced the above. In this

background, the undertaking given to the Dutch Court by the Respondent

No.2 is not binding on him. The Respondent No2. did not get fair trial in the

case heard by the Hague Court, hence it was resisted by him from time to

time.

4.10) That, the welfare of child 'N' would be better subserved if she

remains in the custody of the Respondents. They are financially well settled.

They have the time, resources, manpower and desire to bring up child 'N' in

a conducive atmosphere which is very essential for her overall development.

If child 'N' retained in India, the Respondent No.2 will continue the

Petitioner to access her regularly and through video calls as well. As against

this, transportation of child 'N' to the Netherlands will be harmful to her for

various reasons.

5) In the light of the aforesaid pleadings and facts, we have heard

Mr. Malhotra, learned counsel for the Petitioner, Mr. Mihir Desai, learned

Senior counsel for the Respondent Nos.2 to 5, Mr. S. V. Gavand, learned

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Additional Public Prosecutor for the Respondent No.1-State and Mr. Subodh

Desai, learned amicus curiae. Perused entire record and also the additional

Affidavit submitted by the Respondent No.2.

Submissions on behalf of the Petitioner :

6) Mr. Malhotra, learned counsel submitted that, in the matters of

inter-parental, inter-country child removal, remedy of the habeas corpus is

available under Articles 32 and 226 of the Constitution of India, in exercise

of parens patriae jurisdiction, to determine the best interest and welfare of

children. The case in hand is involving the rival claims of custody of the

illegally detained child 'N', who is just aged 5 years and Dutch National.

Hence, this Petition is maintainable to determine the best interest and

welfare of child 'N', holding necessary enquiry on the basis of the Petition

and the Affidavit-in-reply etc., to adjudicate the question of return of child

'N' to the Netherlands i.e. her jurisdiction of closet contact.

6.1) The learned counsel would submit that, before filing of this

Petition, the parties sufficiently litigated before the Dutch Courts without

questioning its jurisdiction and laws. The jurisdiction issue was rightly never

raised because the Petitioner and child 'N' are Dutch Nationals; the parties

married and were governed under the laws prevailing in the Netherlands;

the cause of action had arisen in the said Courts' jurisdiction; the parties

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ordinarily resided within said territorial jurisdiction when the cause of action

arose; the marriage of the parties was fit to be dissolved as per the laws of

the Netherlands; the rights of custody over child 'N' were to be determined

by the Dutch Court and lastly the said laws are similar to the relevant laws

applicable to such disputes in India.

6.2) Taking this Court through the Orders passed by the Dutch

Courts, the learned counsel submitted that, as the marriage between the

parties was irrevocably broken, it was dissolved at the wish and request by

the parties, vide Dutch Court Order dated 28th April 2023 (Exh.-I). The

issues as to the main residence and custody of child 'N' were also determined

in said divorce proceedings. Accordingly, the main residence of child 'N' shall

be with the Petitioner. The arrangement as to care and upbringing task of

child 'N' has been also finalised by the said Court. Thus, the Respondent

No.2 having acquiesced to be governed by the Dutch laws as above, now is

estopped from raising the custody issue of child 'N' due to the principle of

res judicata. However, not only the Respondent No.2 did not return Child 'N'

back to the Petitioner in Netherlands after expiry of the vacation of two

weeks, he also filed a Petition before the family Court at Mumbai, seeking

permanent custody of child 'N'. As such, detention of child 'N' in India is

illegal/unauthorised.

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6.3) The learned counsel submitted that, when everything was

hunky dory, the Respondent No.2 cannot choose to upset such a situation at

the cost of inconvenience, physical sufferings, mental harassment and

economical loss to everyone in the family of either side and more

particularly to child 'N'. This conduct of Respondent No.2 amounts to

aprobate and reprobate at the same time, which is unjustifiable in law.

6.4) The learned counsel would submit that, the best interest of child

'N' cannot remain in the sole or exclusive care of her father. For a girl child

of 5 years tender age; lap, tender care, love and custody of mother is very

essential. The best interest of child has to be determined in accordance with

Section 2 (1) of the Juvenile Justice (Care & Protection of Children) Act,

2015 by a competent Dutch Court's jurisdiction of closest contact. By

violating the Dutch Court Orders, the Respondent No.2 cannot secure the

best interest and welfare of child 'N' using her as pawn to settle his ego

issues, disputes and differences with the Petitioner and her parents

6.5) It is submitted that, even though child 'N' had a valid passport

expiring in January 2024, the Respondent No.2 obtained a new passport

with longer validity. This conduct clearly manifests that, since inception the

Respondent No.2 did not intend to return to the Netherlands along with

child 'N' and thus wanted to deprive the Petitioner of her rights over her.

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This has completely disrupted child 'N' from the Netherlands and it is against

her best interest and welfare. This conduct does not suit to the Respondent

No.2, being a practicing lawyer.

6.6) Learned counsel lastly submitted that, in so far as the defence

taken up by the Respondent No.2 in his Affidavit-in-reply is concerned, the

said defence was not taken in the divorce proceeding before the Dutch

Court, therefore it is false. Whatever defence was taken by him there in the

said proceedings, was dealt with in detail and rejected. As such, child 'N'

cannot be refused to be returned. In the backdrop the Petition deserves to be

allowed. In that event, the Petitioner will allow the Respondent No.2 to

contact/visit child 'N' without any reservation, as it is in the best interest of

the child.

6.7) To lend support to the aforesaid submissions, Mr. Malhotra,

learned counsel has cited the following decisions : i) Yashita Sahu Vs. State

of Rajasthan:AIR 2020 SC 577, ii) Rajeswari Chandrasekar Ganesh Vs. The

State of Tamilnadu & Ors: SC WP (CR) No.402/2021, iii) Tejaswini Gaud &

Ors. Vs. Shekhar Jagdishprasad Tiwari & Ors.: 2019 (7) SCC 42, iv) Lahari

Sakhamuri Vs. Sobhan Kodali: 2019 (7) SCC 311, v) Jasmeet Kaur Vs. State

(NCT of Delhi) & Anr.:(2020) 13 SCC 782, vi) Dr. Navtej Singh Vs. State

(2018) 2 R.C.R. (Civil) 660, and vii) Rani George Vs. UOI & Ors.: WP (Cri)

No.1206/2022.

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Submissions on behalf of the Respondent Nos.2 to 5 :

7) In reply, Mr. Mihir Desai, learned Senior counsel submitted that,

the Respondent No.2 and child 'N' both were subjected to the racial abuse as

pleaded. The child psychologist's reports filed on record confirms that in

case of child 'N'. Therefore, she is not mentally prepared to join the company

of the Petitioner and her parents.

7.1) Child 'N' is aged just 5 years. She has spent considerable time in

India in the company, love and care etc. of the Respondent Nos.2 to 5. She

has also spent good amount of time with the Respondent No.2 during his

stay in the Netherlands. Presently, child 'N' is studying in a good school, has

made friends and acclimatised with the conditions and child friendly

environment in India. Thus, child 'N' is deeply rooted in India. The

Respondent Nos.2 to 5 are socially and economically well placed. They are

capable to provide best care and upbringing to child 'N'. Since child 'N'

found her comfortable in India in all respects, her best interest and welfare

demands that, she should reside in India only. In such a situation, directing

to handover custody of child 'N' to the Petitioner to take her to the

Netherlands all of a sudden will take a very heavy toll on her physically and

mentally and thus would cause harmful effect on her overall progress. Being

father, it is always open for the Respondent No.2 to travel to India along

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with child 'N'.

7.2) In this background, just because the Orders of custody passed

by the Dutch/foreign Courts are operating against the Respondent No.2 and

he did not comply with the Orders of returning to the Netherlands along

with child 'N', it is not essential to direct that child 'N' be handed over to the

Petitioner to take her permanently to the Netherlands.

7.3) It is submitted that, the passport of child 'N' was to expire on

14th January 2024. Such passport should be valid atleast for six months on

the date one wants to fly out of the Netherlands. As such, the Petitioner's

claim that the new passport of child 'N' is procured with malafide intent, is

baseless.

7.4) This Petition and the Petition filed by Respondent No.2 before

the Family Court, at Mumbai are in proximity of time and involving rival

custody claims. Therefore, according to the learned counsel, an elaborate

enquiry is very essential to finally adjudicate the question of custody, best

interest and welfare of child 'N'. As such there is no scope to exercise the

writ jurisdiction summarily and issue the writ of habeas corpus as prayed for

in the Petition. At the end, Mr. Mihir Desai submitted that, in case the

Petition succeeds, the Respondent No.2 may be allowed to have contact with

and custody right of child 'N', as permitted by the Dutch Courts.

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7.5) To buttress his submissions, Mr. Mihir Desai, learned counsel

has relied upon the following reported decisions : i) Nithya Anand Raghavan

Vs. State (NCT of Delhi) & Anr.: (2017) 8 SCC 456, ii) Prateek Gupta Vs.

Shilpi Gupta and Othrs.: (2018) 2 SCC 309 and iii) Yashita Sahu Vs. State of

Rajasthan:AIR 2020 SC 577.

8) Mr. S. V. Gavand learned APP for the Respondent-State, with a

view and in order to assist this Court submitted that, the fear of the

Petitioner that the Respondent No.2 will not return to the Netherlands along

with child 'N', came to reality when the Respondent No.2 violated the Dutch

Court's Order dated 11th July 2023. Thereafter, the Respondent No.2 violated

this Court's Order dated 8th January 2024 and tried to vanish with child 'N'

disturbing her life, to keep her away from the Petitioner and causing her

inconvenience. This conduct supports the case of the Petitioner. He

submitted that, there is no substance in the defence taken in the Affidavit-in-

Reply. The alleged psychiatrists' reports are taken without the consent of the

Petitioner. Hence, according to the learned APP the Petitioner's case is

acceptable and Petition may be allowed.

9) Mr. Subodh Desai, learned amicus curiae, joined the issue by

submitting that, looking at the lengthy hearing given to the parties the

object of not only summary enquiry but a detailed enquiry is achieved in this

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case. He submitted that the Petition may be accordingly decided in the best

interest of the child.

10) We have given our anxious consideration to the submissions

canvassed across the bar.

10.1) Mr. Mihir Desai, learned Senior counsel for the Respondent

No.2, at the outset, fairly concedes that, having regard to the facts and

circumstances of the case, this Petition is tenable in law before this Court,

hence this issue needs no finding. Secondly; the learned counsel for the

parties submitted that, the question of maintainability or otherwise of the

Petition filed by Respondent No.2 in the Family Court, at Mumbai, seeking

permanent custody of child 'N', may not be addressed herein.

ANALYSIS :

11) In the case of Tejaswini Gaud (supra), the Hon'ble Supreme

Court has held that :

19. Habeas Corpus proceedings is not to justify or examine the

legality of the custody. Habeas Corpus proceedings is a medium

through which the custody of the child is addressed to the discretion

of the Court. Habeas Corpus is a prerogative writ which is an

extraordinary remedy and the writ is issued where in the

circumstances of the particular case, ordinary remedy provided by the

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law is either not available or is ineffective; otherwise a writ will not

be issued. In child custody matters, the power of the High Court in

granting the writ is qualified only in cases where the detention of a

minor by a person who is not entitled to his legal custody. ..., in our

view, in child custody matters, the writ of habeas corpus is

maintainable where it is proved that the detention of a minor child by

a parent or others was illegal and without any authority of law.

12) In the cases of Nithya (supra) and Syed Saleemuddin Vs. Dr.

Rukhsana and others: (2001) 5 SCC 247, the Hon'ble Supreme Court has

held that, in an application seeking a writ of habeas corpus for custody of

minor children, the principal consideration for the Court is to ascertain

whether the custody of the children can be said to be unlawful or illegal and

whether the welfare of the children requires that present custody should be

changed and the children should be left in care and custody of somebody

else. The principle is well settled that, in a matter of custody of a child, the

welfare of the child is of paramount consideration for the Court.

13) In the case of Rajeshwari (supra), in para 84, the Hon'ble

Supreme Court referred the decision in Rosy Jacob Vs. Jacob A.

Chakramakkal:(1973) 1 SCC 840, wherein it is observed that: "7...the

principle on which the Court should decide the fitness of the guardian

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mainly depends on two factors: (i) the father's fitness or otherwise to be the

guardian, and (ii) the interests of the minors. ...... Further, in para 15

thereof it is observed that, "....... . The children are not mere chattels; nor

are they mere play-things for their parents. Absolute right of parents over

the destinies and the lives of their children, has, in the modern changed

social conditions, yielded to the considerations of their welfare as human

beings so that they may grow up in a normal balanced manner to be useful

members of the society ...... ". In the same Judgment, in para 86, the

Hon'ble Supreme Court observed that, "whenever a question arises before a

Court pertaining to the custody of the minor child, the matter is to be

decided not on consideration of the legal rights of the parties but on the sole

and predominant criterion of what would best serve the interest and welfare

of the child". In para 90 thereof, the Hon'ble Supreme Court considered the

American Jurisprudence, 2nd Edn. Vol. 39, wherein it is stated that, "... In

determining whether it will be for the best interest of a child to award its

custody to the father or mother, the Court may properly consult the child, if

it has sufficient judgment".

13.1) In view of the aforesaid, in para 91, the Hon'ble Supreme Court

held that, "91. Thus, it is well established that in issuing the writ of Habeas

Corpus in the case of minors, the jurisdiction which the Court exercises is an

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inherent jurisdiction as distinct from a statutory jurisdiction conferred by

any particular provision in any special statute. In other words, the

employment of the writ of Habeas Corpus in child custody cases is not

pursuant to, but independent of any statute. The jurisdiction exercised by

the Court rests in such cases on its inherent equitable powers and exerts the

force of the State, as parens patriae, for the protection of its minor ward,

and the very nature and scope of the inquiry and the result sought to be

accomplished call for the exercise of the jurisdiction of a Court of equity. The

primary object of a Habeas Corpus petition, as applied to minor children, is

to determine in whose custody the best interests of the child will probably

be advanced. In a Habeas Corpus proceeding brought by one parent against

the other for the custody of their child, the Court has before it the question

of the rights of the parties as between themselves, and also has before it, if

presented by the pleadings and the evidence, the question of the interest

which the State, as parens patriae, has in promoting the best interests of the

child". In para 92 the Hon'ble Supreme Court considered the following

general principle governing the award of custody of minor, as stated in

Halsbury's Laws of England, Fourth Edition, Vol. 24, Article 511 at page

217 : "... Where in any proceedings before any Court the custody or

upbringing of a minor is in question, then, in deciding that question, the

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Court must regard the minor's welfare as the first and paramount

consideration, and may not take into consideration whether from any other

point of view the father's claim in respect of that custody or upbringing is

superior to that of the mother, or the mother's claim is superior to that of the

father"."

14) Considering the peculiar facts and circumstances of the case in

hand, at this stage, a useful reference can be made to the following decisions

of the Hon'ble Supreme Court.

14.1) In the case of Tejaswini Gaud (supra), the Hon'ble Supreme

Court held that :

"20. In child custody matters, the ordinary remedy lies only under

the Hindu Minority and Guardianship Act or the Guardians and

Wards Act as the case may be. In cases arising out of the

proceedings under the Guardians and Wards Act, the jurisdiction of

the Court is determined by whether the minor ordinarily resides

within the area on which the Court exercises such jurisdiction. There

are significant differences between the enquiry under the Guardians

and Wards Act and the exercise of powers by a writ Court which is

of summary in nature. What is important is the welfare of the child.

In the writ Court, rights are determined only on the basis of

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affidavits. Where the Court is of the view that a detailed enquiry is

required, the Court may decline to exercise the extraordinary

jurisdiction and direct the parties to approach the civil Court. It is

only in exceptional cases, the rights of the parties to the custody of

the minor will be determined in exercise of extraordinary

jurisdiction on a petition for habeas corpus."

14.2) In the case of V. Ravi Chandran Vs. Union of India and others:

(2010) 1 SCC 174, in para 29 and 30 the Hon'ble Supreme Court has held

that :

"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 the 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 the

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

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as the paramount consideration and go into all relevant aspects of

welfare of the 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 interests of the child. The

indication given in McKee v. McKee [1951 AC 352 : (1951) 1 All ER

942 (PC)], that there may be cases in which it is proper for a Court in

one jurisdiction to make an order directing that a child be returned to

a foreign jurisdiction without investigating the merits of the dispute

relating to the care of the child on the ground that such an order is in

the best interests of the child has been explained in L (Minors), In re

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[(1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)] and the said view

has been approved by this Court in Dhanwanti Joshi [(1998) 1 SCC

112]. Similar view taken by the Court of Appeal in H. (Infants), In re

[(1966) 1 WLR 381 (Ch & CA) : (1966) 1 All ER 886 (CA)] has been

approved by this Court in Elizabeth Dinshaw, (1987)1 SCC 42 : 1987

SCC (Cri) 13]".

14.3) The Hon'ble Supreme Court then proceeded to consider the

issue, whether the facts of the case before it warranted an elaborate inquiry

into the question of custody of the minor and should the parties be relegated

to the said procedure before an appropriate forum in India. Lastly; the

Hon'ble Supreme Court concluded in its judgment that, it was not necessary

to relegate the parties to an elaborate procedure in India. Its reasons are

found in paras 32 to 35, which read as follows :

"32. Admittedly, Adithya is an American citizen, born and brought

up in the United States of America. He has spent his initial years

there. The natural habitat of Adithya is in the United States of

America. As a matter of fact, keeping in view the welfare and

happiness of the child and in his best interests, the parties have

obtained a series of consent orders concerning his

custody/parenting rights, maintenance, etc. from the competent

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Courts of jurisdiction in America. Initially, on 18.4.2005, a consent

order governing the issues of custody and guardianship of minor

Adithya was passed by the New York State Supreme Court

whereunder the Court granted joint custody of the child to the

petitioner and Respondent 6 and it was stipulated in the order to

keep the other party informed about the whereabouts of the child. In

a separation agreement entered into between the parties on

28.7.2005, the consent order dated 18.4.2005 regarding custody of

minor son Adithya continued.

33. In 8.9.2005 order whereby the marriage between the petitioner

and Respondent 6 was dissolved by the New York State Supreme

Court, again the child custody order dated 18.4.2005 was

incorporated. Then the petitioner and Respondent 6 agreed for

modification of the custody order and, accordingly, the Family Court

of the State of New York on 18.6.2007 ordered that the parties shall

share joint legal and physical custody of the minor Adithya and, in

this regard, a comprehensive arrangement in respect of the custody

of the child has been made.

34. The fact that all orders concerning the custody of the minor child

Adithya have been passed by the American Courts by consent of the

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parties shows that the objections raised by Respondent 6 in the

counter affidavit about deprivation of basic rights of the child by the

petitioner in the past; failure of the petitioner to give medication to

the child; denial of education to the minor child; deprivation of

stable environment to the minor child; and child abuse are hollow

and without any substance. The objection raised by Respondent 6 in

the counter-affidavit that the American Courts which passed the

order/decree had no jurisdiction and being inconsistent with Indian

laws cannot be executed in India also prima facie does not seem to

have any merit since despite the fact that Respondent 6 has been

staying in India for more than two years, she has not pursued any

legal proceeding for the sole custody of the minor Adithya or for

declaration that the orders passed by the American Courts

concerning the custody of minor child Adithya are null and void and

without jurisdiction. Rather it transpires from the counter affidavit

that initially Respondent 6 initiated the proceedings under the

Guardians and Wards Act, 1890 but later on withdrew the same.

35. The facts and circumstances noticed above leave no manner of

doubt that merely because the child has been brought to India by

Respondent 6, the custody issue concerning minor child Adithya

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does not deserve to be gone into by the Courts in India and it would

be in accord with principles of comity as well as on facts to return

the child back to the United States of America from where he has

been removed and enable the parties to establish the case before the

Courts in the native State of the child i.e. the United States of

America for modification of the existing custody orders. There is

nothing on record which may even remotely suggest that it would be

harmful for the child to be returned to his native country."

14.4) Thus, despite the fact that the aforesaid minor child Adithya

had remained in India for over two years, the Hon'ble Supreme Court

concluded that, it could not be said that the he had developed his roots in

India and therefore directed the respondent mother to take the child, of her

own, to the USA and to report before the Family Court of the State of New

York. The Apex Court also imposed the condition on the petitioner therein to

bear all the travelling expenses of the mother and the minor child and

directed him to request the authorities that the warrants issued against the

mother be dropped and he was directed not to file or pursue any criminal

charge for violation by the mother of the consent order in USA.

15) As observed in the case of Rajeswari (supra), in the case of

Nithya (supra) the Hon'ble Supreme Court struck altogether a different note

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and gave a new dimension. In the case of Nithya (supra), the couple married

on 30.11.2006 at Chennai and shifted to the UK in the early 2007. Disputes

between the spouses arose. The wife having conceived in December 2008,

came to New Delhi in June 2009 and stayed with her parents and gave birth

to a girl child - Nethra on 07.08.2009 at Delhi. After the husband arrived in

India, the couple went back to the UK in March, 2010 and following certain

unsavoury events, the wife and the daughter returned to India in August

2010. After exchange of legal correspondence, the wife and her daughter

went back to London in December 2011, and in January 2012 the daughter

was admitted in a nursery in the UK. In December 2012, the child was

granted the UK citizenship and the husband was also granted the UK

citizenship in January 2013. They bought a home in the UK to which they

shifted their family. In September, 2013 the child was admitted in a primary

school in the UK and she was around four years old. In July 2014 the wife

returned to India along with her daughter. She again returned to the UK

along with the child. Between late 2014 and early 2015 the child became ill

and was diagnosed with cardiac disorder. On 02.07.2015, the wife returned

to India with her daughter due to the alleged violent behaviour of her

husband. On 16.12.2015, the wife filed a complaint against the husband at

the CAW Cell, New Delhi, and in spite of the notices to the husband and her

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parents, neither of them appeared. The husband filed a custody/wardship

petition on 08.01.2016 in the UK to seek return of the child. On 23.1.2016,

he also filed a Habeas Corpus petition in the Delhi High Court which was

allowed on 08.07.2016. The wife carried the case to the Apex Court. The

Hon'ble Supreme Court has relied upon its decision in the case of Dhanwanti

Joshi Vs. Madhav Unde:(1998) 1 SCC 112, which in turn, referred to Mckee

v. McKee, 1951 AC 352 : (1951) 1 All ER 942 (PC), where the Privy Council

held that, the order of the foreign Court would yield to the welfare of the

child and that, the comity of Courts demanded not its enforcement, but its

grave consideration. While taking note of the fact that India is not a

signatory to the Hague Convention of 1980, on the "Civil Aspects of

International Child Abduction", the Hon'ble Supreme Court [in the case of

Nithya (supra)], inter alia, held as under : "40. ... . As regards the non-

Convention countries, the law is that the Court in the country to which the

child has been removed must consider the question on merits bearing the

welfare of the child as of paramount importance and reckon the order of the

foreign Court as only a factor to be taken into consideration, unless the

Court thinks it fit to exercise summary jurisdiction in the interests of the

child and its prompt return is for its welfare. In exercise of summary

jurisdiction, the Court must be satisfied and of the opinion that the

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proceeding instituted before it was in close proximity and filed promptly

after the child was removed from his/her native state and brought within its

territorial jurisdiction, the child has not gained roots here and further that it

will be in the child's welfare to return to his native state because of the

difference in language spoken or social customs and contacts to which

he/she has been accustomed or such other tangible reasons. 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. Be it noted that 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 pre-existing 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

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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. We are in respectful agreement with

the aforementioned exposition."

15.1) Finally the Hon'ble Supreme Court in Nithya (supra), concluded

as under : "69. We once again reiterate that the exposition in Dhanwanti

Joshi v. Madhav Unde, (1998) 1 SCC 112 is a good law and has been quoted

with approval by a three-Judge Bench of this Court in V. Ravi Chandran

(supra). We approve the view taken in Dhanwanti Joshi v. Madhav Unde,

(1998) 1 SCC 112, inter alia, in para 33 that 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 into consideration. The

summary jurisdiction to return the child be exercised in cases where the

child had been removed from its native land and removed to another

country where, may be, his native language is not spoken, or the child gets

divorced from the social customs and contacts to which he has been

accustomed, or if its education in his native land is interrupted and the child

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is being subjected to a foreign system of education, for these are all acts

which could psychologically disturb the child. 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."

15.2) As observed by the Hon'ble Supreme Court in the case of

Rajeswri (supra), the essence of the judgment in Nithya (supra) is that, the

doctrines of comity of Courts, intimate connect, orders passed by foreign

Courts having jurisdiction in the matter regarding the custody of the minor

child, the citizenship of the parents and the child, etc. cannot override the

consideration of the best interest and the welfare of the child, and that the

direction to return the child to the foreign jurisdiction must not result in any

physical, mental, psychological, or other harm to the child. Further, as

observed by the Hon'ble Supreme Court in Vivek Singh Vs. Romani Singh:

(2017) 3 SCC 231, in cases of this nature, where a child feels tormented

because of the strained relations between her parents and ideally needs the

company of both of them, it becomes, at times, a difficult choice for the

Court to decide as to whom the custody should be given. However, even in

such a dilemma, the paramount consideration is the welfare of the child.

However, at times the prevailing circumstances are so puzzling that it

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becomes difficult to weigh the conflicting parameters and decide on which

side the balance tilts.

16) The Government of India has acceded on the 11 th December

1992 to the Convention on the Rights of the Child, adopted by the General

Assembly of United Nations, which has prescribed a set of standards to be

adhered to by all State parties in securing the best interest of the child. In

this regard it is useful to refer the decision in the case of Lahari Sakhamuri

(supra), wherein the Hon'ble Supreme Court has held as under :

43. The expression "best interest of child" which is always kept to be

of paramount consideration is indeed wide in its connotation and it

cannot remain the love and care of the primary care giver, i.e., the

mother in case of the infant or the child who is only a few years old.

The definition of "best interest of the child" envisaged in Section 2 (9)

of the Juvenile Justice (Care & Protection) Act of 2015, is to mean,

"the basis for any decision taken regarding the child, to ensure

fulfillment of his basic rights and needs, identify, social well-being

and physical, emotional and intellectual development".

17) In the above context, the observations of the Hon'ble Supreme

Court in the case of Rajeswari, in para 87, 88 and 89 are very relevant. The

same read as under :

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"87. The question as to how the Court would determine what is best

in the interest of the child was considered In Re: McGrath (Infants),

[1893] 1 Ch. 143 C.A., and it was observed by Lindley L.J., as

follows : "... the welfare of a child is not to be measured by money

only, nor by physical comfort only. The word welfare must be taken

in its widest sense. The moral and religious welfare of the child

must be considered as well as its physical well-being. Nor can the ties

of affection be disregarded.

"88. The issue as to the welfare of the child again arose In re "O" (An

Infant), [1965] 1 Ch. 23 C.A., where Harman L.J., stated as follows :

"It is not, I think, really in dispute that in all cases the paramount

consideration is the welfare of the child; but that, of course, does not

mean you add up shillings and pence, or situation or prospects, or

even religion. What you look at is the whole background of the

child's life, and the first consideration you have to take into account

when you are looking at his welfare is : who are his parents and are

they ready to do their duty?"

89. The question as to what would be the dominating factors while

examining the welfare of a child was considered in Walker v. Walker

& Harrison: 1981 New Ze Recent Law 257 and it was stated as

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follows : "Welfare is an all-encompassing word. It includes material

welfare; both in the sense of adequacy of resources to provide a

pleasant home and a comfortable standard of living and in the sense

of an adequacy of care to ensure that good health and due personal

pride are maintained. However, while material considerations have

their place they are secondary matters. More important are the

stability and the security, the loving and understanding care and

guidance, the warm and compassionate relationships that are

essential for the full development of the child's own character,

personality and talents".

18) In the case of Lahari Sakhamuri (supra), the Hon'ble Supreme

Court held that :

49. The crucial factors which have to be kept in mind by the

Courts for gauging the welfare of the children equally for the

parent's can be inter alia, delineated, such as (1) maturity and

judgment; (2) mental stability; (3) ability to provide access to

schools; (4) moral character; (5) ability to provide continuing

involvement in the community; (6) financial sufficiency and last

but not the least the factors involving relationship with the

child, as opposed to characteristics of the parent as an

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individual.

19) In the case of Vivek Singh (supra), the Hon'ble Supreme Court

held that, "The role of the mother in the development of a child's personality

can never be doubted. A child gets the best protection through the mother. It

is a most natural thing for any child to grow up in the company of one's

mother. The company of the mother is the most natural thing for a child.

Neither the father nor any other person can give the same kind of love,

affection, care and sympathies to a child as that of a mother. The company of

a mother is more valuable to a growing up female child unless there are

compelling and justifiable reasons, a child should not be deprived of the

company of the mother. The company of the mother is always in the welfare

of the minor child".

20) Thus, in the case in hand, we have considered the submissions

made by all the parties by keeping in mind the well-established principles of

law as laid down in the aforesaid decisions. On such a consideration, we are

of the opinion that, the case and counter case is not so poised or the

question involved in this Petition is not so complex to make it momentous to

direct the parties to go for elaborate enquiry where the Court is obliged to

examine the merits as to where the paramount interests and welfare of the

child lay and the custody. That apart, the length of hearing given to the

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rival parties is indicative of the fact that, by and large, the object of detailed

enquiry is also fulfilled in this case. The learned counsels representing the

parties have not taken any exception to that.

20.1) It is well accepted that, the summary jurisdiction be exercised if

the Court to which the child has been removed is moved promptly and

quickly. The overriding consideration must be the interest and welfare of the

child. That the doctrine of comity of Courts, intimate connect, 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 that

the direction to return the child to the foreign jurisdiction must not result in

any physical, mental, psychological, or other harm to the child. The

expression "best interest of the child", which is always kept to be of

paramount consideration, is indeed wide in its connotation, and it cannot

remain only the love and care of the primary caregiver i.e. the mother in the

case of the child who is only a few years old and the basis for any decision

taken regarding the child, is to ensure fulfillment of his basic rights and

needs, identity, social well-being and physical, emotional and intellectual

development. 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

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Court should decide the issue of custody only on the basis of what is in the

best interest of the child.

Final Analysis :

21) Now we advert to the question whether child 'N' should be

handed over to the Petitioner or be allowed to remain with the Respondent

No.2. In this regard, the strength and weaknesses of the parties matter

much. And we take notice of the following circumstances emerged from the

material on record.

22) First and foremost; child 'N' was born in the Netherlands. Like

Petitioner, she is a Dutch National. Presently, she is just aged 5 years.

Majority of her life in the Netherlands, she was in the company of her

mother i.e. the Petitioner. Prior to filing of this Petition, when the marital tie

was sailing smooth, the mother and the child also spent time together in

India. As such it is natural that, there is indeed great physical, mental and

emotional bonding between them.

23) In this context it is pertinent to state that, on 20 th December

2023, the Petitioner desired to meet child 'N'. The Respondent No.2 agreed

for that and dropped child 'N' on the same day, at 2:30 p.m., in the hotel

where the Petitioner was staying then and picked-up the child at 8:00 p.m.

On 21st December 2023, this Court (Coram : Revati Mohite Dere & Gauri

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Godse, JJ) interacted with child 'N' first and then with the Petitioner. Since

there was no impediment, this Court permitted the Petitioner to take child

'N' from the Court itself for overnight stay with direction to handover the

child to Respondent No.2 on 22nd December 2023, between 5:00 p.m. to

5:30 p.m. Both these meetings were uneventful and in conformity with this

Court's Orders. These circumstances fortify our conclusion above that, there

is good attachment as loving mother-daughter between the Petitioner and

child 'N' and both need company of each-other. This is very important for a

girl child of tender age of 5 years.

24) The decision in the divorce case dissolving the marriage also

dealt with the question of main residence of child 'N' and issues related to

the rights of the parties as to contact with child 'N'. It also determined the

pecuniary needs/costs of child 'N' and share of the Petitioner and the

Respondent No.2 therein.

24.1) About the main residence, the Petitioner requested to stipulate

that the main residence of child 'N' shall be with her. The Respondent No.2

initially put up a defence against this request and requested independently

to stipulate that, the main residence be with him from the moment he has

his own house. However, by letter of 20 th March, 2023, the Respondent No.2

withdrew this request. Hence, the decision noted that, child 'N' shall have

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her main residence with the Petitioner.

24.2) The Petitioner purchased a house in 2019 and then the parties

resided there together. The Petitioner suffered a miscarriage in October

2021. These facts indicate that, the parties were firm to settle in the

Netherlands only. Thereafter, the relations between the parties strained and

they involved in the litigation. In the year 2022, child 'N' was just aged 4

years. As such the general principles of law governing child custody issue

lean in favour of mother. Child 'N' is Dutch National by birth and holds a

passport thereof. The Respondent No.2 purchased a house in the

Netherlands, in November 2022. In this scenario the Respondent No.2 being

lawyer could anticipated that, the Dutch Court will not grant him the main

residence. Therefore, he purchased a house there to remain connected with

the daughter. All this cumulatively indicate that, the Respondent No.2 was

prepared for the main residence of child 'N' in Netherlands.

24.3) Child 'N' and the Petitioner lived in the Netherlands together for

majority of the time. Child 'N' has been staying in India just for last 5

months. She has not set her roots in India yet. Therefore, and taking overall

view of the matter, natural process of grooming in the environment of her

native country in the company of her mother is indispensable for

comprehensive development of child 'N'.

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25) Now about the aspect of financial and shelter support. The

Petitioner claims that her own house is spacious. There is no controversy

about it. As to financial capacity, the decree of divorce clearly noted that,

the financial capacity of the parties is sufficient to meet the needs of child

'N'. Comparatively, the Petitioner earns more. Hence, the Dutch Court

directed the parties to share the costs of child 'N'. Thus, it is crystal clear

that, the Petitioner is able to provide both financial and shelter support to

child 'N'.

26) The arrangement on the division of care and upbringing tasks

were directed by the Dutch Court by its Order dated 28 th April 2023, to be as

follows :

"The Respondent No.2 is entitled to contact with child 'N' every

week on Thursday after school to Friday morning to school and one

weekend per fortnight from Saturday 10.00 a.m. to Sunday 5.00 p.m. (17:00

hours) after the 2023 summer holidays, the Respondent No.2 is entitled to

contact with child 'N': one week from Thursday after school to Saturday

10.00 a.m., the other week from Thursday after school to Sunday 5.00 p.m.

(17:00 hours). During half of the (official) holidays, to be determined in

mutual consultation".

26.1) Thus, the rights of the Respondent No.2 as to contact and

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custody in respect of child 'N' were safe guarded by the foreign Court.

27) As noted in the Judgment dated 11 th July 2023, passed by the

East Brabant District Court (Exh.-J), in Case Number/Cause list number:

C/01/383853/KG ZA 23-275, for the division of the care and upbringing

tasks of child 'N' in the 2023 summer vacations, the Petitioner proposed by

her email message of 1st June, 2023 to divide six weeks in the sense that

child 'N' stays one week with one parent, and with the other parent the next

week. The Respondent No.2 by his email message of 2 nd June, 2023, did not

agree with the said proposal, as he intended to travel to India with child 'N'

from 15th July 2023 to 29th July 2023. In turn, the Petitioner by her email

dated 4th June, 2023 conveyed that she would not give consent to travel

outside the Netherlands with child 'N'. Hence, the Respondent No.2 filed the

Case Number C/01/383853/KG ZA 23-275. The Petitioner resisted this case

mainly on the ground of her fear that the Respondent No.2 will not return to

the Netherlands with child 'N', as he originates from India, his family still

lives there, he has no social network and good job in the Netherlands.

27.1) However, the Preliminary Relief Judge was of the opinion that,

the Petitioner's fears seem unrealistic, as the Respondent No.2 had argued,

without contradiction that, he has built up his life in Netherlands and when

asked, has no intention of not returning to the Netherlands with child 'N'.

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The Respondent No.2 explained that, he has built social network around

him, has bought a house and applied with his current employer for a

position more similar to his level of education. Moreover, child 'N' only has

Dutch Nationality and attends school in the Netherlands. In the preliminary

opinion of the Court in preliminary relief proceedings, the above shows that

the Respondent No.2 is socially and economically settled in the Netherlands

so that it cannot be assumed that he will not return to Netherlands with the

requested travel permission. In view of the above, the said Court granted a

substitute consent in lieu of the Petitioner's consent and allowed the

Respondent No.2 to travel with child 'N' to India from 5 th August 2023 to

19th August 2023.

28) From the aforesaid Order of the Dutch Court it can be easily

seen that, with his submissions the Respondent No.2 convinced the said

Court to trust and believe in him that, he will abide by the said Order and

return with child 'N' to the Netherlands upto 19th August 2023. However, he

did not. Thus, the child's presence in India is only the result of the

Respondent's unilateral decision of not returning to the Netherlands.

29) In the backdrop, according to the Petitioner, the Respondent

No.2 has unjustifiably violated the Order dated 11th July 2023 passed by East

Brabant District Court, Netherlands and detained child 'N' with him illegally.

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Therefore, the child deserves return to her country.

29.1) The Respondent No.2 has put a defence that, he and child 'N'

were subjected to racial discrimination and therefore child 'N' developed fear

against the Petitioner and her parents. Hence, child 'N' is not willing to go

back to the Petitioner; the Petitioner and her family members do not

cooperate with him in the Netherlands with respect to child 'N'; their

behaviour towards him is continuously violent and aggressive. He has no

support in the Netherlands. There is possibility of his prosecution and

punishment by the Dutch Courts, for violating the Order dated 9 th November

2023, whereby he has been directed to return child 'N' to the Netherlands.

30) From the record before us, we find that, the plea of racial

discrimination was not raised till the Respondent No.2 filed an Appeal in the

Dutch Court on 3rd January 2024 against the Order dated 9th November 2023

thereby requiring him to return with child 'N' to the Netherlands by 28 th

November 2023 at the latest. Thus, the said defence is taken at a very

belated stage. Secondly, the defence of racial discrimination in the pleadings

in this proceedings is as vague as possible. Thirdly, the Respondent No.2

willingly agreed for the main residence of child 'N' with the Petitioner only.

Fourthly, during the meetings on 20 th and 21st December 2023, child 'N' was

comfortable in the company of the Petitioner thereby ruling out the so called

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racial discrimination. Thus, the said defence is a sheer afterthought by the

Respondent No.2 and adopted only to defeat the Orders passed by the Dutch

Courts.

30.1) The plea of racial discrimination tried to be countenanced by

certain reports allegedly issued by some child psychiatrist after examining

child 'N' and on the basis of some photos/videos etc. However, the same are

procured one month after child 'N' was brought to India. The Petitioner's

permission was not taken for that, which is normally a rule in such cases.

There is more to critisise, but we restrict ourselves by just noting that, said

reports are devoid of any merit and according to us are procured by the

Respondent No.2 to cause prejudice in the mind of Court and none else.

31) By Order dated 8th January 2024, this Court had directed the

Respondent No.2 to handover custody of child 'N' to the Petitioner as and by

way of pro-tem arrangement. On instructions, the learned Counsel for the

Respondent No.2 had made a statement that, the later will book a Super

Deluxe room upto 13th January 2024 for the Petitioner and child 'N'.

However, on 9th January 2024, the Petitioner, moved this Court for

directions, as the Respondent No.2 flouted the Order dated 8 th January 2024

and tried to vanish with child 'N'. Therefore, this Court was constrained to

issue a bailable warrant against the Respondent No.2 with a direction to the

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Deputy Commissioner of Police, Zone IX, Mumbai to personally supervise

execution of the said warrant.

31.1) The police apprehended the Respondent No.2 at Daman-Union

Territory and produced along with child 'N' before this Court on 11 th January

2024, at 5:00 p.m. Then, the matter was taken up in Chamber by the Co-

ordinate Bench, as this Bench was not available. The Court (Coram : Revati

Mohite Dere & Manjusha Deshpande, JJ.) interacted with child 'N' and

allowed the Petitioner to interact with her. All the Advocates for the parties

were present during the interaction. The Court noted that child 'N' was

found comfortable with the Petitioner, hence, the Court permitted her to

take child 'N' with her directly from the Chamber. Thereafter, nothing is

pointed out requiring to handover child 'N' to the Respondent No.2. Thus,

the aforesaid conduct of the Respondent No.2 and what transpired in the

Court clearly indicates that the plea of racial discrimination is completely

hollow and is a sham plea adopted by the Respondent No.2.

31.2) In contrast to the conduct of the Respondent No.2 noted above,

as child 'N' was not returned to the Netherlands on time, the Petitioner

immediately swung in action and secured an Order dated 9 th November

2023 from the Dutch Court requiring the Respondent No.2 to resume

custody of child 'N' with the Petitioner. Soon thereafter, the Petitioner flew

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to India along with her parent/s at huge airfare, other expenses and facing

lot of inconvenience just to see the child and take her to the Netherlands by

filing this Petition promptly on 19th December 2023. This conduct speaks

volumes about the Petitioner's sincere interest in child 'N', affection towards

her and their warm and compassionate relationships. It also indicates that

the Petitioner with her family is caring and deeply concerned for the child. If

indeed they were not and there was eminent threat from them to child 'N',

neither they would have flown to India and litigated here nor the child

would have accepted the Petitioner as evident from this Court's Orders dated

20th and 21 December 2023 and 11 th January 2024. All this nullify the entire

stance taken by the Respondent No.2 for defending this Petition.

32) Considering the level of differences to which the parties have

reached, if return of child 'N' to the Netherlands is declined, then there is

possibility of polluting the mind and thoughts of child 'N' about the

Petitioner to such an extent that, at one point of time she will think that her

own mother is only responsible for deserting her and depriving her the

mother's love, affection, care and proper upbringing. This is doctrine of

'Parental Alienation Syndrome' i.e. the efforts made by one parent to get the

child to give up his/her own positive perceptions of the other parent and get

him/her to agree with their own viewpoint. It has two psychological

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destructive effects: (1) it puts the child in the middle of a loyalty contest,

which cannot possibly won by any parent, and (2) it makes the child to

assess the reality, thereby requiring to blame either parent who is supposedly

deprived of positive traits. Therefore, the intent of the Court should be to

circumvent such ill effects. In this background and considering the

observations in the foregoing para 19 of this Judgment, it is necessary to

avoid the element of 'Parental Alienation Syndrome', which is presently

absent in this case.

33) Last but not least, the Respondent No.2 has his house to stay in

the Netherlands. Before the East Brabant District Court, the Respondent

No.2 had stated that, he has built social network around him in the

Netherlands. As against this, the Petitioner has no residence facility in

Mumbai/India. In case child 'N' is not allowed to be taken to the

Netherlands, the Petitioner will have to come to India to meet her.

Unarguably, she will not come alone and will bring at least one relative. This

is too much of a woman to expect as it would unnecessarily burden the

Petitioner economically, mentally and physically. The converse will help her

save that money and energy, which is ultimately wise to spent for the better

care and upbringing of child 'N'.

34) India is undoubtedly known for its zero tolerance policy towards

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racial discrimination. The Respondent No.2, however, had the audacity to

take the shelter of the defence of racial discrimination; that too against the

Petitioner, who once was his wife and spent considerable years with him.

This way, the Respondent No.2 has lowered the image of the India and its

citizens in the view of Petitioner and her fellow nationals. We record our

displeasure for this conduct as according to us, it is unethical.

35) As noted above, the issues related to the main residence, contact

and custody etc. of child 'N' have been addressed for the present by the

Dutch Court/s of competent jurisdiction. The Respondent No.2 had

undertaken to return to Netherlands with child 'N' upto 19 th August 2023.

However, immediately after passing of the Order dated 9 th November 2023

by the Dutch Court requiring return of child 'N' to the Netherlands, the

Respondent No.2 filed the Petition before the Family Court, at Mumbai

seeking permanent custody. Before that, he admitted child 'N' in the local

school. This, the Respondent No.2 did intentionally, because being a lawyer,

he knew that, once the Petitioner is caused to litigate in the Family Court, it

will take a considerable time to adjudicate the question of the custody. By

that time, child 'N' will sufficiently develop her roots in India and her

schooling will advance. These circumstances will make it difficult to severe

her ties from India. In that case, there will be great possibility of the Court/s

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in India allowing child 'N' to stay in India without her mother, even though

there was default in complying with the Orders of the Dutch Court. Thus, it

is evident that, the Respondent No.2 came to India along with child 'N' with

a pre-planned determination not to go back. Therefore he disregarded the

Orders of the Dutch Courts and filed the Petition before the Family Court, at

Mumbai to thrust an obstacle in the return of child 'N' to her own country.

This clearly indicate that, the Respondent No.2 brought child 'N' to India to

serve his own purpose i.e. to keep child 'N' permanently with him.

36) From the East Brabant District Court's Order dated 21st July

2023, it seems that, the Petitioner consented for the passport but in

laborious manner and within terms. This circumstance clearly indicate that,

the Petitioner's fear noted in the same Court's previous Order dated 11 th July

2023, that the Respondent No.2 would not return to the Netherlands with

child 'N', was realistic as he wanted to keep child 'N' permanently with him

and deprive the Petitioner the benefits of her custody rights and ultimately,

the mother's love and affection to child 'N'. Thus, it is safe to infer that, the

Respondent No.2 obtained the new passport with oblique intent.

37) As discussed above, the Respondent No.2 unnecessarily flouted

the Orders of the foreign Court and this Court. This conduct of the

Respondent No.2 deprived the biological mother of her natural love and

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affection for 4-5 months. The learned Advocate for the Petitioner moved a

Praecipe dated 30th January 2024, with a grievance that, though by an

interim order dated 18th January 2024, this Court had directed the

Respondent No.2 to continue to make payment of the accommodation

charges of the hotel where the Petitioner is presently stationed, the

Respondent No.2 did not make the payment on 29th January 2024 and the

hotel administration asked the Petitioner to make it good. In this regard, the

tax invoice generated by the concerned hotel on 29 th January 2024, at 9.45

p.m. was enclosed with the praecipe. Learned Advocate for the Respondent

No.2 vehemently opposed the pleadings in the said praecipe and submitted

that, the payment upto 29th January 2024 is made to the concerned hotel,

however, no affidavit in support of his contention is placed on record till

then. Therefore, this Court directed the Respondent No.2 to deposit the

accommodation charges of the Petitioner upto 6th February 2024, with the

concerned hotel. Thus, the above conduct of the Respondent No.2 clearly

indicates that he has scant regards to the Orders of the Courts.

38) Conspectus of the above discussion is that, the sudden

disconnect of child 'N' from her native; the Netherlands, is unjustifiable

because she is a Dutch National. She was less than five years of age at that

time, as conceded. Her main residence was with the Petitioner and she was

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studying in school there. The Petitioner is able to provide necessary

conducive atmosphere in the Netherlands for proper care and upbringing of

child 'N'. This is assured by the Petitioner's love, affection, caring nature

towards child 'N', and capacity to provide adequate financial support and

spacious home to her. Even though the Petitioner is working, she is able to

devote sufficient time to manage schooling, studies and all other needs of

child 'N'. The Petitioner is also capable to instill moral and ethical values in

child 'N'. For all this, she has additional support of her parents. Being a

Dutch National, eventually child 'N' will get the benefits available to the

Domicile of the Netherlands. The above, we are sure, will be certainly in the

best interest and welfare of child 'N'. The criteria such as comity of Courts

and Orders of the Dutch Courts etc. are also weighing with the Petitioner.

39) In the backdrop, it will be in the best interest and welfare of

child 'N' and there will be no harm if child 'N' returns and stays with the

Petitioner-mother at the Netherlands. Thus, the Petitioner is entitled to

retain child 'N' with her and return to the Netherlands.

40) Now about the interest of the Respondent No.2. Shared

parenting is a rule everywhere in such disputes related to children.

Therefore, while coming to the conclusion that, in the best interest and

welfare child 'N' should be with her mother-the Petitioner, this Court was qui

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vive of the fact that, the Respondent No.2 has certain contact rights over

child 'N' by virtue of the Dutch Court Orders. This favour is granted to the

Respondent No.2 because child 'N' is of very tender age, therefore, she

requires equal support of her both parents to see that, she grows under the

umbrella of diverse tradition and culture of the two countries and steps into

the world as a respectable person. This itself is a very unique opportunity

and blessing for such child. There cannot be an argument on that. Therefore,

we do not think it appropriate to interfere with the rights of contact/custody

determined under the Orders of Dutch Court and let the parties get the said

issues finally adjudicated before the Court of competent jurisdiction.

Otherwise, it will have an ill effect over the best interest and welfare of child

'N' to be achieved. Moreover, as submitted by Mr. Malhotra, the learned

counsel, the Petitioner has no objection for the above.

40.1) Therefore, and considering the submissions by Mr. Mihir Desai,

learned Senior counsel for the Respondent No.2, it is in the interest of the

justice that, the Petitioner seeks an appropriate order/direction in this regard

from the competent Court so that, child 'N' is not deprived of the support of

the father as it is very essential for her overall development considering her

present condition. Otherwise, its consequences will erode the way of the

support which child 'N' will receive from and in the company of the

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Respondent No.2. Further, not having company of child 'N' on that account,

will deprive the father and daughter of their basic human rights.

40.2) In this regard, it is apt to refer the Judgment in the case of

Yashita Sahu (supra) wherein the Hon'ble Supreme Court held that, child

separated from one parent in custodial controversy faces adverse

psychological impact. To minimize such impact, Courts should afford

sufficient visitation rights to parent not given child's custody so that the

child may not lose social, physical and psychological contact which her/him.

The parent denied the child's custody should also be able to contact and talk

to child as often as possible. Video calling is best system of contact,

especially where both parents live in different States or countries. For this

purpose, the parents should reach an arrangement so that the child can live

in an environment, reasonably conducive to her/his development.

41) In view of the above deliberation we allow the Writ Petition.

Hence, the following Order :-

i) Custody of Child 'N' is already handed over to the Petitioner by Order

dated 11th January 2024. Hence, the Petitioner is permitted to take child 'N'

with her to the Netherlands.

ii) The Registrar (Judicial-I) of this Court is directed to handover the

passport of the Petitioner as well as the passport and OCI card of child 'N' to

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the Petitioner forthwith on production of an authenticated copy of this

Order.

iii) The Registrar (Judicial-I) also to return the passport of the

Respondent No.2 to him on production of an authenticated copy of this

Order.

iv) The Respondent No.2 is entitled to talk/meet to child 'N' as may be

mutually decided between the parties.

v) The Respondent No.2 is entitled to contact with child 'N', her care and

upbringing as permitted in the aforesaid Order dated 28 th April, 2023,

passed by the Dutch Court which is in force.

vi) Whenever the Respondent No.2 wanted to avail the right of contact,

care and upbringing given under the said Order dated 28 th April, 2023 of the

Dutch Court, he can do so by giving notice of at least two weeks in advance

intimating in writing to the Petitioner and if such request is received, the

Petitioner to positively respond in writing to allow the Respondent No.2 to

contact/meet child 'N'.

vii) If the above Order is terminated, the Petitioner shall seek an

appropriate order/direction from the Dutch Court/s to revive/restore the

same, so that, child 'N' is not deprived of the support of the father.

viii) Until such revival/restoration of the Order, if the Respondent No.2

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visits at the Netherlands, the Petitioner shall allow him to contact/meet child

'N' for two hours per day, thrice a week, at the time and venue prefixed by

the parties. The Respondent No.2 shall not be entitled to and will not make

any attempt to take child 'N' away from the said venue.

ix) Petitioner will permit the Respondent No.2 to interact with child 'N' on

telephone/mobile or video conferencing on every Friday, Saturday and

Sunday, between 5:00 p.m. to 6.00 p.m. IST or as may be agreed between

the parties.

x) Rule is made absolute in the aforesaid terms.

xi) All parties to act on authenticated copy of this Judgment and Order.

(SHYAM C. CHANDAK, J.) (A. S. GADKARI, J.)

42) At this stage learned counsel for the Respondent No.2 prayed

that the operation and implementation of the present order may be stayed

for a period of two weeks from today. Learned Counsel for the Petitioner

opposed the said prayer.

43) Taking into consideration the observations made by us in the

present judgment and the fact that the Petitioner being a Dutch National

residing in India for last more than 28 days for pursuing this Petition, the

said prayer is rejected.

(SHYAM C. CHANDAK, J.) (A. S. GADKARI, J.) 59/59

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