Holding

The Supreme Court may either conduct a full custody enquiry or, where appropriate, summarily direct the child to be returned to the foreign jurisdiction; in this case it ordered the child’s return to the United States within 15 days.

Summary

Dr. V. Ravi Chandran, an American citizen, filed a writ petition under Article 32 seeking a habeas corpus order for the production of his seven‑year‑old son, a U.S. citizen, who had been taken to India by the mother, respondent No.6, in contravention of multiple custody orders passed by New York courts. After the CBI located the child and mother, the Supreme Court examined whether it could entertain the petition, whether it should conduct a full custody enquiry or return the child to the United States, and the weight to be given to foreign custody orders. Relying on the paramount consideration of the child’s welfare and the principle of comity, the Court held that a summary order directing the child’s return to his native country was appropriate. The mother was ordered to take the child back to the United States within 15 days, bearing the travel costs, and failure to do so would result in custody reverting to the father. The petition was disposed.

Issues considered

The jurisdiction of the Supreme Court under Article 32 to entertain a habeas corpus petition concerning a foreign child.
Whether the Indian court should conduct an elaborate enquiry into custody or summarily return the child to the foreign jurisdiction.
The binding effect and weight of foreign custody orders in an Indian proceeding.
The appropriate remedy for the petitioner seeking custody of the child.
The maintainability of the writ petition in the facts of the case.

Legislation cited

Guardianship and Wards Act, 1890

Subjects

child custodyinternational child abductionhabeas corpusArticle 32comity of nationsforeign jurisdictionwelfare of childguardianship

Judgment

[2009] 15 (ADDL.) S.C.R. 960

A V. RAVI CHANDRAN
v.
UNION OF INDIA & ORS.
(Writ Petition (Crl.) No. 112 of 2007)
NOVEMBER 17, 2009
B
[TARUN CHATTERJEE, R.M. LODHA AND
DR. B.S.CHAUHAN, JJ.]

Child Welfare - Custody and guardianship of foreign child
- Removed from foreign jurisdiction by one parent - In
c contravention of the orders of the Court - Held: In such cases
court should either conduct an elaborate enquiry on the
question of custody or to summarily direct the parent to return
the case to the court of the country from which the child was
removed to be investigated there - On facts, the case does not
warrant enquiry by the court in India - Parent who removed the
D child from the jurisdiction of the foreign country, directed to
produce the child to the competent court there, within 15 days
from the date of the order- On failure to do so, custody of the
child with his passport to be restored to the other parent.
Constitution of India, 1950 - Article 32 - Jurisdiction
· E under - Custody of foreign child decided by foreign court -
Removal of the child from foreign jurisdiction by one parent -
·~ Petition for issuance of writ of habeas corpus by other parent-
Held: Jurisdiction of Supreme Court is invokable in the facts
of the case.
F Petitioner, an American citizen got married to
respon6dent No. 6. He obtained an order of dissolution of
marriage from the competent court in the United States of
America. Several orders were passed by the court with the
consent of the parties, regarding custody and
G guardianship of their minor child (7 years) who is also an
American Citizen. By order dated 18.6.2005, a joint custody
was given to them. Respondent No. 6 brought the child to
India informing the petitioner that she would b~ residing
with her parents in India.

H 960
V. RAVI CHANDRAN v. UNION OF INDIA & ORS. 961

~
Petitioner filed petitions before the Family court in A
"' ....America, whe·reby petitioner was granted temporary sole
legal and physical custody of the child, and respondent
No. 6 was directed to give the child and his passport to the
petitioner. Her custodial time with the child was
suspended. The Family Court in America issued child B
abuse non-bailable warrants against respondent No.6.
Petitioner filed writ petition under Article 32 of the
... Constitution of India, praying for a writ of habeas corpus
for the production of his minor son and for handing over
~ the custody and his passport to him.
c
Despite the efforts made by the police of different
States, the child and respondent No. 6 could not be traced
and their whereabouts could not be found for more than
I

two years. This Court directed CBI to trace them and
produce the child before this Court. CBI traced the child
and respondent No. 6 and produced them before this D
... Court.
Disposing of the petition, the Court
HELD: 1.1. While dealing with a case of custody of a
child removed by a parent from one country to another in
E
contravention to the orders of the court where the parties
had set up their matrimonial home, the court in the country
to which child has been removed must first consider the
question whether the court could conduct an elaborate
~ . enquiry on the question of custody or by dealing with the
matter summarily, order a parent to return custody of the F
child to the country from which the child was removed and
all aspects relating to child's welfare be investigated in a
court in his own country. Should the court take a view that
an elaborate enquiry is necessary, obviously the court is
bound to consider the welfare and happiness of the child G
as the paramount consideration and go into all relevant
#-. aspects of welfare of child including stability and security,
+ loving and understanding care and guidance and full
development of the child's character, personality and
talents. While doing so, the order of a foreign court as to
H
V. RAVI CHANDRAN v. UNION OF INDIA & ORS. 963

also prima facie does not seem to have any merit since A
~ ,..,\
despite the fact that the respondent No. 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 or for declaration that the orders passed by the
American courts concerning the custody of minor child are 8
null and void and without jurisdiction. Rather it transpires
from the counter affidavit that initially respondent No. 6
initiated the proceedings under Guardianship and Wards
..-
Act but later on withdrew the same. The facts and
circumstances leave no manner of doubt that merely
~·
because the child has been brought to India by c
respondent No. 6, the custody issue concerning the minor
child 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 · D
enable the parties to establish the case before the courts
in the native State of the child, i.e. 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.[Para 21] [990-8-E] E
1.5. It is also true that one of the factors to be kept in .
mind in exercise of summary jurisdiction in the interest of
child is that application for custody/return of the child is
'"""'\
J. made promptly and quickly after the child has been
removed. This is so because any delay may result in child F
developing roots in the country to which he has been
removed. From the counter affidavitfiled by respondent
No. 6, it is apparent that in last two years the child did not
have education at one place. He has moved from one
school to another. Respondent No. 6 and the child have G
been moving from one State to another. The parents of
~
respondent No. 6 have filed an affidavit before this Court
~
denying any knowledge or awareness of the whereabouts
of respondent No. 6 and the minor child ever since they
left in September, 2007. In these circumstances, there has
H
964 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A been no occasion for the child, developing roots in this
country. Moreover, the present habeas corpus petition has )... ,.'
been filed by the petitioner promptly and without any delay,
but since respondent No. 6 has been moving from one
State to another and her whereabouts were not known, the
B
notice could not be served and child could not be
produced for more than two years. [Para 22] [990-F-H; 991-
A-C] r
1.6. It is ordered that respondent No. 6 shall act as per .,,
the consent order dated June 18, 2007 passed by the
Family Court of the State of New York till such time any
c further order is passed on the petition that may be moved r.
by the parties henceforth and, accordingly, she will take
the child of her own to the United States of America within
fifteen days from the date of the judgment and report to
, that court. The petitioner shall bear all the traveling
D expenses and make arrangements for their residence in
the United States of America till further orders are passe~
by the competent court. The petitioner shall request the "'
authorities that the warrants against respondent No. 6 be
dropped. He shall not file or pursue any criminal charges
E for violation by respondent No. 6 of the consent order in
the United States of America. Respondent No. 6 shall
furnish her address and contact number in India to the CBI i-
·,-
authorities and also inform them in advance the date and
flight details of her departure along with the child for
United States of America.In the event of respondent No. 6 ~ ..
~
F not taking the child to United States of America within the •"

stipulated time, the child with his passport shall be
restored to the custody of the petitioner to be taken to
United States of America. The child will be a ward of the
concerned court that passed the consent order dated
G June 18, 2007. It will be open to respondent No. 6 to move
that court for a review of the custody of the child, if so,
advised. [Para 26] (992-D-G; 993-A-B] 4,.,
~·
Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and
Anr. (1984) 3 SCC 698; Mrs. Elizabeth Dinshaw vs. Arvand M.
Dinshaw and Anr. (1987) 1 SCC 42; Dhanwanti Joshi vs.
H
V. RAVI CHANDRAN v. UNION OF INDIA & ORS. 965

.,, .... Madhav Unde (1998) 1 SCC 112; Sarita S~c:rma vs. Sushi/ A
Sharma (2000) 3 SCC 14, relied on.
In re B's Settlement (1940) Ch. 54; Mark T. Mc.Kee vs.
EyelynMcKee (1951) A.C. 352; Harben vs. Harben (1957) 1.
·I
W.L.R. 261; Kemotvs. Kemot(1965) Ch. 217; In re H. (Infants)
(1966) 1 W.L.R. 381; In re. L. (minors) (1974) 1 All ER 913, B
referred to.
' .. 2. In the peculiar facts and circumstances of the case
invocation of jurisdiction of this Court under Article 32 of
the Constitution of India cannot be said to be
:
inappropriate. [Para 24] (992-8] c
Case Law Reference :
(1940) Ch. 54 Referred to. Para 9
(1951) A.C. 352 Referred to. Para 10
(1957) 1. W.L.R. 261 Referred to. Para 11
_. (1965) Ch. 217 Referred to. Para 12 D
(1966) 1 W.L.R. 381 Referred to. Para 13
(1974) 1 All ER 913 Referred to. Para 14
(1984) 3 sec 698 Relied on. Para 16
(1987) 1 sec 42 Relied on. Para 17
E
(1998) 1sec112 Relied on. Para 18
(2000) 3 sec 14 Relied on. Para 19
CIRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.)
...... No. 112 of 2007 .
'-
Under Article 32 of the Constitution of India
F
Ms. Pinky Anand, T.L.V. Iyer, D.N. Goburdhan, Arrin S.
Rastogi, Prabal Bagchi, V.G. Pragasam, A.T.M. Sampath, T.S.
Shanthi, P.N. Ramalingam, Kamini Jaiswal, D. Bharathi Reddy,
Anitha Shenoy, S. Thananjayan, Subhash Kaushik, P.K. Dey, M.
Tatia, AK. Sharma, Sudarshan Rajan, K.L.N.V. Veeranjaneyulu,
Merusagar Samantaray, Ms. Chandan Ramamurthi, for the G
'-#-
.1.. appearing parties .
The Judgment of the Court was delivered by
R.M. LODHA, J. 1. Adithya is a boy· of seven, born on July
1, 2002, in the United States of America. He is a foreign national.
H
966 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A The petition before us is by the father - Dr. V. Ravi Chandran- ,. ~
praying for a writ of habeas corpus for the production of his minor
son Adithya and for handing over the custody and his passport
to him.
2. On August 28, 2009, this Court passed an order
B requesting Director, Central Bureau of Investigation (CBI) to trace
minor Adithya and produce him before this Court. The necessity
of such order arose as despite efforts made by the police officers
and officials of different states, Adithya and his mother - ....
respondent no. 6-Vijayasree Voora-could not be traced and
their whereabouts could not be found for more than two years
c since the notice was issued by this Court. In pursuance of the
order dated August 28, 2009, CBI issued look out notices on all
India basis through heads of police of States, Union Territories
and Metropolitan Cities and also alert notices through Deputy
Director, Bureau of Immigration (Immigration), Ministry of Home--
D Affairs, New Delhi and flashed photographs of the child Adithya
and his mother Vijayasree Voora. Ultimately with its earnest
'""
efforts, CBI traced Adithya and his mother Vijayashree Voora
in Chennai on October 24, 2009 and brought them to Delhi and
produced the child along with his mother at the residential office
of one of us (Tarun Chatterjee, J.) on October 25, 2009. On that
E day, the CBI authorities were directed to keep the child under
their custody and produce him before the Court on October 27,
2009. Respondent no. 6 was also directed to be produced on
that date. On October 27, 2009, the matter was adjourned for _,
November 4, 2009 since respondent no.6 wanted to engage a .. '
F lawyer and file a counter affidavit. On November 4, 2009, matter
was adjourned to November 10, 2009 and then to November 12,
2009. The petitioner was permitted to meet the child for one hour
on November 10, 2009 and November 12, 200S. In the
meanwhile, respondent no. 6 has filed counter affidavit in
opposition to the habeas corpus petition and petitioner has filed
G
rejoinder affidavit to the counter affidavit filed by respondent no.6.
~
3. We heard Ms. Pinky Anand, learned senior counsel for
4
the petitioner and Mr. T.L.V. Iyer, learned senior counsel for
respondent no. 6. Now since minor Adithya has been produced,
tne only question that remains to be considered is with regard
H
V. RAVI CHANDRAN v. UNION OF INOIA & ORS. 967
[R.M. LODHA, J.]

-...( -.t
to the prayer made by the petitioner for handing over the custody A
of minor Adithya to him with his passport.
4. But before we do that, it is necessary to notice few
material facts., Dr. V. Ravi Chandran - petitioner - is an
American citizen. He and respondent no. 6 got married on
December 14, 2000 at Tirupathi, Andhra Pradesh according to B
Hindu rites. On July 1, 2002, Adithya was born in United States
of America. In the month of July 2003, respondent no. 6
approached the New York State Supreme Court for divorce and
dissolution of marriage. A consent order governing the issues
of custody and guardianship of minor Adithya was passed by
the New York State Supreme Court on April 18, 2005. The Court c
granted joint custody of the child to the petitioner and respondent
no. 6 and it was stipulated in the order to keep the other party
informed about the whereabouts of the child. On July 28, 2005,
a Separation Agreement was entered between the petitioner
and respondent no.6 for distribution of marital property, spouse 0
maintenance and child support. As regards custody of the minor
son Adithya and parenting time, the petitioner and respondent
no. 6 consented to the order dated April 18, 20Q5. On September
8, 2005, the marriage between the petitioner and respondent
no.6 was dissolved by the New York State Supreme Court. Child
custody order dated April 18, 2005 was incorporated in that
E
order.
5. Upon the petition for modification of custody filed by the
petitioner and the petition for enforcement filed by him and upon
~
;. the petition for enforcement filed by respondent no.6 before the
'
Family_9ourt of the State of New York, on June 18, 2007, upon F
the consent of both parties, inter - alia, the following order came
to be passed:
......... "ORDERED, the parties shall share joint legal and
physical custody of the minor child; and it is further
ORDERED, that commencing during August 2007, G
Adithya shall reside in Allen, Texas; and it is further
... ORDERED, that the parties acknowledge that it is the
intention of the parties to reside within the same community.
As such, it is the mother's current intention to relocate to
Texas, within a forty (40) mile radius of the father's residence. H
968 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A If the mother does relocate to a forty (40) mile radius of the
father's residence (which shall be within a twenty (20) mile
radius from the child's school),, the parties shall equally
share physical custody of Adithya. The parties shall alternate
physical custody on a weekly basis, with the exchange being
on Friday, at the end of the School day, or at the time when
8
school would ordinarily let out in the event that there is no
sch_ool on Friday; ............... .

ORDERED, that in the event that the mother does not
c relocate within forty (40) miles from the father's residence
located in Allen, Texas (and within twenty (20) miles of
Adithya's school), the.mother shall have custodial time with
the minor child, as follo~s:
A On Alternating weekends from Friday, at the end of
D the school day until Monday, prior to the beginning
of school, commencing during the first week of
September, 2007. Such periods of custodial time
shall take place within forty (40) miles from the
father's residence located in Allen, Texas. In the event
E that there is no school on the Friday of the mother's_ -
weekend, she shall have custodial time with the child
beginning at 7.00 a.m. on Friday morning, and, in the
event that there is no scho'ol on Monday of the
mother's custodial weekend, she shall have
custodial time until 5.00 p.m. on Monday, and -
F
8. For ten (10) consecutive days during Spring vacation
from school; and
C. For the entirety of the Christmas reces$ f~vm School,
except for Christmas Eve and Christmas day, which
G shalt be with the father. In the event that the school
recess is prior to Christmas Eve, the mother shall
have the right to have custodial time during those
recessed days to long as she produces the child at
the father's residence for Christmas Eve and
Christmas day ; and
H
V. RAVI CHANDRAN v. UNION OF INDIA & .ORS. 969
[RM. LODHA, J.]
D. During the following holidays: A
(i) Mother's birthday, which is on April 25;
(ii) · Mother's Day;
(iii) Hindu Festival of Diwali and Deepavali;
(iv) Adithya's birthday (July 1) in alternating years; 8
(v) Thanks giving in alternating years (so that the
mother has custodial time during even -
numbered years and the father has custodial
time during odd - numbered years);
(vi) New Year's Day in alternating years (so that C
the mother has custodial time during even -
numbered years and the father has custodial
time during odd -numbered years)
, ............................ .
D
ORDERED, that the parties shall share the
summer recess from school so that the mother has
custodial time for a total of up to fifty (50) days on a
schedule so that each party has custodial time for 4
consecutive weeks, with the mother's custodial time E
commencing on the Monday following the final day
of school ......... .
ORDERED, for the summer of 2007, the
mother shall have custodial time from June 18 until
June 20; the father shall have custodial time from
F
June 20 until June 24; the mother shall have custodial
time from June 25 until July 1; the father shall have
custodial time from July 1 until July 6; and the mother
shall then have custodial time from July 6 until August
3 and she shall be solely responsible for transporting
the child to the father's residence in Allen, Texas on G
August 3. The father shall have custodial time until
the commencement of school. Thereafter the father
shall continue to have custodial time until such time
as the mother either a) returns from India and/or
begins her alternating weekly schedule as set froth H
970 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A herein, orb) moves within 40 miles of the father's
residence in Allen, Texas and commences her
custodial time during alternating
weeks; ................................... .
... ... ... ... ... ... ... ... ······ ...............................
B ........................ ······ ............................... ~'

ORDERED, that each party agrees that they
shall provide the other parent with a phone number
and address where the child will be located at all
time, and that the other parent shall have reasonable
c and regular telephone communication with the minor
child; and it is further
ORDERED, that each party agrees to provide
the other party with the child's passport during each
custodial exchange of the minor child, and that each
D party shall sign and deliver to the other, whatever
written authorization may be necessary for travel with
the child within the Continental United States or )..

abroad;" ..............................................
6. On June 28, 2007 respondent no.6 brought minor Adithya
to India informing the petitioner that she would be residing with
E
her parents in Chennai. On August 08, 2007, the petitioner filed
the petition for modification (Custody) and Violation Petition
(Custody) before the Family Court of the State of New York on
which a show cause not'ice came to be issued to respondent
no.6. On that very day, the petitioner was granted temporary sole
F legal and physical custody of Adithya and respondent no. 6 was
directed to immediately turn over the minor child and his passport
... ....
to the petitioner and further her custodial time with the minor child
was suspended and it was ordered that the issue of custody of
Adithya shall be heard in the jurisdiction of the United States
G Courts, specifically, the Albany County Family Court.
7. It transpires that the Family Court of the State of New York
has issued child abuse non-bailable warrants against
respondent no.6. ~

8. In the backdrop of the aforenoticed facts, we have to
consider-now since the child has been produced-what should
H

•.
V. RAVI CHANDRAN v. UNION OF INDIA & ORS. 971
[R.M. LODHA, J.]
be the appropriate order in the facts and circumstances keeping A
---<# ,/ in mind the interest of the child and the orders of the courts of
the country of which the child is a national.
9. In re B-'s Settlement, 1 Chancery Division was
concerned with an application for custody by the fathe·r of an infant
;~
who had been made a ward of court. The father was a Belgian 8
national and the mother a British national who took Belgian
nationality on marriage to him. The infant was born in Belgium.
The mother was granted a divorce by a judgment of the Court in
Belgium, but the judgment was reversed and the father became
entitled to custody by the common law of Belgium. The mother,
who had gone to live in England, visited Belgium and was by c
arrangement given the custody of the infant for some days. She
took him to England and did not return him. The infant had been
living with mother in England for nearly two years. The father
began divorce proceedings in Belgium, and the Court appointed
him guardian. Pending the proceedings, the Court gave him the 0
custody and ordered the mother to return the infant within twenty-
four hours of service of the order on her. She did not return the
____,_
infant. The Correctional Court in Brussels fined her for
disobedience and sentenced her to imprisonment should the fine
be not paid. The Correctional Court also confirmed the custody
order. In the backdrop of these facts, the summons taken out by E
the father that custody of the infant be given to him came up before
Morton, J. who after hearing the parties and in view of the
provisions of the Guardianship of Infants Act, 1925 observed
thus:
'- F"
• " ... At the moment my feeling is very strong that, even
assuming in the father's favour that there is nothing in his
character or habits which would render him unfitted to have

-
the custody of the child, the welfare of the child requires, in
all the circumstances as they exist, that he should remain in
England for the time being .............................. G
In the present case the position is that nearly two years ago,
when the child was already in England, an interlocutory order
;( was made by the Divorce Court in Belgium giving the
custody of the child to the father I do not know how far, if at
1. {1940} Ch. 54.
ti
972 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A all, the matter was considered on the footing of what was
best for the child at that time, or whether it was regarded as
a matter of course that the father, being the guardian by the
common law of Belgium and the applicant in the divorce
proceedings and the only parent in Belgium, should be given
the custody. I cannot regard that order as rendering it in any
B
way improper or contrary to the comity of nations if I now
consider, when the boy has been in this country for nearly
two years, what is in the best interests of the boy. I do not
think it would be right for the Court, exercising its jurisdiction
over a ward who is in this country, although he is a Belgian
c national, blindly to follow the order made in Belgium on
October 5, 1937. I think the present case differs from Nugent
vs. Vetzera {FN 1O}, the case that was before Page Wood
V.-C., and it is to be observed that even in that case, and in
the special circumstances of that case, the Vice-Chancellor
D guarded himself against anything like abdication of the
control of this Court over its wards. It does not appear what
the Vice-Chancellor's view would have been if there had
been evidence, for example, that it would be most
detrimental to the health and well-being of the children if they
were removed from England and sent to
E Austria ................................................. .
. . . . . . .. I ought to give due weight to any views formed by the
Courts of the country whereof the infant is a national. But I
desire to say quite plainly that in my view this Court is bound
in every case, without exception, to treat the welfare of its
F ward as being the first and paramount consideration,
whatever orders may have been made by the Courts of any
other country." ................................................ .
10. In Mark T. Mc.Kee vs. Eye/yn McKee2 , the Privy Council
was concerned with an appeal from the Supreme Court of
G Canada. That was a case where the parents of the infant were
American citizens. They were married in America and to whom
a son was born in California in July 1940. They separated in
December 1940 ·and on September 4, 1941, executed an
agreement which provided, inter- a/ia, that neither of them should
H 2. {1951} A.C. 352.
V. RAVI CHANDRAN v. UNION OF INDIA & ORS. 973
[R.M. LODHA, J.]

remove the child out of the United States without the written A
permission of the other. By a judgment of December 17, 1942,
;,
in divorce proceedings before the Superior Court of the State
of California, the custody of the child was awarded to the father.
On August 1, 1945, following applications by the father and the
mother, the previous order as to custody was modified to provide
8
full custody of the child to the mother with right of reasonable
visitation to the father. Thereafter, and without the consent or
knowledge of the mother, the father went from the United States
of America with the child into the Province of Ontario. The mother
thereupon instituted habeas corpus proceedings in the Supreme
Court of Ontario seeking to have the child delivered to her. Wells, c
J., before whom the matter came held that infant's best interests
would be served in the custody of his father. The Court of Appeal
for Ontario dismissed the appeal preferred by the ~other.
However, the Supreme Court of Canada by majority ju gment
allowed the appeal of the mother and set aside the order of b
custody of child to the father. On appeal from the Supreme Court I

.. of Canada at the instance of the father, the Privy Council held
a~' follows:
" .......... For, after reaffirming "the well established general
rule that in all questions relating to the custody of an infant
the·paramount consideration is the welfare of the infant", he E
observed that no case had been referred to which
established the proposition that, where the facts were such
as he found them to exist in the case, the salient features of
which have been stated, a parent by the simple expedient
of taking the child with him across the border into Ontario F
... .for the sole purpose of avoiding obedience to the judgment
of the court, whose jurisdiction he himself invoked, becomes
"entitled as of right to have the whole question retried in our
courts and to have them reach a anew and independent
judgment as to what is best forthe infant". and it is, in effect, GI
because he held that the father had no such right that the !

judge allowed the appeal of the mother, and that the
'/ Supreme Court made the order already referred to.
:,,,
But with great respect to the judge, this was not the question
which had to be determined. It is po%;01e that a case might
H
974 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A arise in which it appeared to a court, before which the
question of custody of an infant came, that it was in the best
interests of that infant that it should not look beyond the
circumstances in which its jurisdiction was invoked and for
that reason give effect to the foreign judgment without further
inquiry. But it is the negation of the proposition, from which
B
every judgment in this case has proceeded, namely, that the
infant's welfare is the paramount consideration, to say that
where the trial judge has in his discretion thought fit not to
take the drastic course above indicated, but to examine all
the circumstances and form an independent judgment, his
c decision ought for that reason to be overruled. Once it is
conceded that the court of Ontario had jurisdiction to
entertain the question of custody and that it need not blindly
follow an order made by a foreign court, the consequence
cannot be escaped that it must form an independent
D judgment on the question, though in doing so it will give
pr9per weight to the_ foreign judgment. What is the proper
weight will depend on the circumstances of each case. It
may be that, if the matter comes before the court of Ontario·
within a very short time ;of the foreign judgment and there is
no new circumstance to be considered, the weight may be
E so great that such an order as the Supreme Court niade in
·this case could be justified. But if so, it would be not because
the court of Ontario, having assumed jurisdiction, then
abdicated it, but because in the exercise of its jurisdiction
it determined what was for the benefit of the infant. ·
F It cannot be ignored that such consequences might follow
...
as are suggested by Cartwright, J. The disappointed parent •
might meet stratagem by stratagem and, taking the child into
the Province of Manitoba, invoke the protection of its courts,
whose duty it would then be to determine the question of
G
a
custody. That is consideration which, with others, must be
weighed by the trial judge. It is not, perhaps, a Gonsideration
which in the present case should have weighed heavily.
It has been said that the weight or persuasive effect of a
foreign judgment must depend on the circumstances of
each case. In the present case there was ample reason for
H
V. RAVI CHANDRAN v. UNION OF INDIA & ORS. 975
[R.M. LODHA, J.]
the trial judge, in the first place, forming the opinion that he A
should not take the drastic course of following it without
independent inquiry and, in the second place, coming to a
different conclusion as to what was for the infant's
benefit." .................................. .
11. The aforesaid two cases came up for consideration in 8
Harben vs. Harben 3 , wherein Sachs J. observed as follows:
"It has always been the practice of this court to ensure
that a parent should not gain advantage by the use of fraud
or force in relation to the kidnapping of children from the care
of the other spouse, save perhaps where there is some quite C
overwhelming reason in the children's interest why the ,
status quo should not be restored by the court before
deciding further issues. In the present case I am concerneg
with three young children, two of whom are girls and the
youngest is aged only three. It is a particularly wicked thing
to snatch such children from the care of a mother, and, in D
saying that, I have in mind not merely the mother's position I
but the harm that can be done to the children. No affidavit
of the husband tendering either his regrets or any vestige
of excuse for his action has been proffered. Further, as I have
already mentioned, when first I asked Mr. Syms what was E
the nature of the case which he might wish to make, if so
minded, for depriving these children of a mother's care, he
only spoke of her association with a certain man and never
suggested that she had in any way whatsoever failed to look
after the children properly."
/
12. In Kernot vs. Kernot4, the facts were thus: In May 1961, F
the plaintiff mother, an Italian lady, married an English man in Italy
where both were residents. A boy was born there on March 29,
1962. On October 19, 1963, they obtained in Italian Court a
separation order by consent providing therein that custody of the
child would remain with father, with rights of access to the mother G
. On October 29, 1963, the father brought the infant to England
with intention to make England his home. The mother
commenced wardship procetedings in which she brought a
3. {1957} 1. W.L.R. 261
4. {1965}Ch.217. H
976 SUPREME COURT REPORTS [20D9] 15 (ADDL.) S.C.R.

A motion for an order that the father return the infant to her in Italy.
She also prayed for restraint order against him from taking the ~

infant out of her care. Buckley, J. in these facts held thus: /
"So that even where a foreign court has made an order on
the merits - which is not the present case, because the only
B order which has been made was a consent order without
any investigation of the merits by the Italian court - that
domestic court before whom the matter comes (the Ontario
COL!rt in the case to which I have just referred, or this court in
the case before me) is bound to consider what is in the best
interests of the infant; and although the order of the foreign
c court will be attended to as one of the circumstances to be
taken into account it is not conclusive one way or the other.
How much stronger must the duty of this court be to entertain
the case where the foreign court has not made any order
based on any investigation of the case on its merits."
D 13. In re H. (lnfants)5, the Court of Appeal was concerned
with two American boys whose divorced parents were both
·"-
citizens of United States of America. On December 11, 1964,
a
the Supreme Court of New York State made consent order
directing that the two boys whose custody had been given to the
mother should be maintained in her apartment in New York and
E
not be removed from a 50 miles' radius of Peekskill without the
prior written consent of the father. However, the mother in March
1965 brought these boys to England and bought a house for
herself and children in June 1965. On June 15, 1965, the New
York Court ordered the children to be returned to New York. The
F mother started wardship proceedings in the English court. The ,. ,...,.
father took out motion asking the mother that the tw~ children
should be delivered into his care, that he should be at liberty to
convey them to New York and that the wardship of the children
should be discharged. The Trial Judge held that the justice of the,
G case required the 'children to be returned without delay to the
jurisdiction of the New York court, so that the question of where
and with whom they should live might be decided as soon as A.,.
possible by that court. The mother appealed to the Court of .,_

Appeal. Willmer L.J. and Harman L.J. by their separate

H
- --
5. (1966) 1 W.L.R. 381=(19960 1 All.E.R. 886.
V. RAVI CHANDRAN v. UNION OF INDIA & ORS. 977
[R.M. LODHA, J.]
judgments affirmed the view of the Trial Judge and held that the A
proper order was to send these two boys back to their State of
New York, where they belong (and where the Supreme Court is
already seized of their case), and more especially so having
regard to the fact that they have been kept in flagrant contempt
of New York Court's order. Willmer L.J. agreed with the remark
8
of Cross J. where he said:
"The sudden and unauthorized removal of children from one
country to ar)other is far too frequent nowadays, and as it
seems to me it is th~ duty of ~II courts in all countries to do
all they can to ensure that the wrongdoer does not gain an
advantage by his wrongdoing." C
Willmer L.J. went on to hold:
"The judge took the view (and I think it was the right view)
that in a case such as the present it was not necessary to
go into all the disputed questions between the parents, but
that he ought to send these boys back to their own country D
to be dealt with by the court of their own country, provided
that he was satisfied (as he was satisfied, having seen the
father himself, and having had the benefit of the view
expressed on behalf of the Official Solicitor) that they would
come to no harm if the father took them back to the United E·
States; and that this was so, even though it might
subsequently turn out, after all the merits of the case had
been thoroughly thrashed out in the court in New York, that
it would perhaps be better after all for the boys to reside in
Englanckmd see little or nothing of their father."
Harman L.J. in his separate judgment held thus:
" ...... .But if he chose to take the course which the judge here
took in the interests of the children , as he thought, of
sending them back to the United States with no more inquiry
into the matter than to ensure, so far as he could, that there
was no danger to their moral or physical health in taking that G

• course, I am of opinion that he was amply justified, and that
that was the right way in which to approach the issue.
These children had been the subject of an order (it is
true made by consent) made in the courts of their own
country in December, 1964. It was only three months later H
.
978 · SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A that the mother flouted that order, deceived her own advisers ·~
and deceived the court , and brought the children here with
the object of taking them right out of their father's life and ~·
depriving him altogether of their society. The interval is so
. short that it seems to me that the court inevitably was bound
to view the matter through those spectacles; that is to say, ~
B
that the order having been made so shortly before, and there
being no difference in the circumstances in the three months
which had elapsed, there was no justification for the course
which the mother had taµn, and that she was not entitled
to seek to bolster her own wrong by seeking the assistance
c of this court in· perpetuating that position, and seeking to
change the situation to th'e father's disadvantage.ii
14. In re. L (minors)6, the Court of Appeal was concerned
with the custody of the foreign children who were removed from
foreign jurisdiction by one parent. That was a case where a "'"'l
D German national domiciled and resident in Germany married an
English woman. Their matrimonJal home was Germany and the ~
~
two children were born out of the wedlock and brought up in
Germany. The lady became unhappy in her married life and in
August, 1972, she brought her children to England with an
intention of permanently establishing herself and the children in
E England. She obtained residential employment in the school in
England and the children were accommodated at the school.
The children not haying returned to Germany, the father came to
England to find them. On October 25, 1972, the mother issued
an originating summons making them wards of court. The trial . ·-
F judge found that the children should be brought up by their mother
and treating the case as a 'kidnapping' class of case,
approached the matter by observing that in such a case where
the children were foreign children, who had moved in a foreign
home, their life should continue in what were their natural
surroundings, unless it appeared to the court that it would be
G
harmful to the children if they were returned. He concluded that ....
......
in view of the arrangements which their father could make for
'+
them, the children would not be harmed by being returned. He,
accordingly, ordered that they be returned to Germany and that

H 6. {1974} 1 All ER 913.
V. RAVI CHANDRAN v. UNION OF INDIA & ORS. 979
[R.M. LODHA, J.]
they remain in theirfather's custody until further order. The mother A
• >
appealed, contending that in every case the welfare of the child
was the first and paramount consideration and that the welfare
of the children would be best served by staying with their mother
in England. Buckley, LJ in his detailed consideration of the
matter, wherein he referred to the aforenoticed decisions and
B
few other decisions as well, held as follows:
" ....... Where the court has embarked on a full-scale
investigation of that facts, the applicable principles, in my
view, do not differ from those which apply to any other
wardship case. The action of one party in kidnapping the
child is doubtless one of the circumstances to be taken into C
account, any may be a circumstance of great weight; the
weight to be attributed to it must depend on the
circumstances of the particular case. The court may
conclude. that notwithstanding the conduct of the 'kidnapper'
the child should remain in his or her care (McKee v. McKee, o
Re E (an infant) and Re. T.A. (infants), where the order was
merely interim); or it may conclude that the child should be
returned to his or her native country or the jurisdiction from
which he or she has been removed. Where a court makes
a summary order for the return of a child to a foreign country
without investigating the merits, the same principles, in my E
judgment apply, but the decision must be justified on
somewhat different grounds .
.............................................................. The
judge may well be persuaded that it would be better for the
child that those merits should be investigated in a court in F
his native country than that he should spend in this country
the period which must necessarily elapse before all the
evidence can be assembled for adjudication here. Anyone
who has had experience of the exercise of this delicate
jurisdiction knows what complications can result from a child G
developing roots in new soil, and what conflicts this can
occasion in the child's own life. Such roots can grow rapidly.
An order that the child should be returned forthwith to the
country from which he has been removed in the expectation
that any dispute about his custody will be satisfactorily
resolved in the courts of that country may well be regarded H
980 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A as being in the best interests of the child ...... "
15. In re. L. (minors)6, the Court of Appeal has made a
distinction between cases, where the court considers the facts
and fully investigates the merits of a dispute, in a wardship matter
in which the welfare of the child concerned is not the only
B consideration but is the first and paramount consideration, and
cases where the court do not embark on a full·scale investigation
of the facts and make a summary order for the return of a child
to a foreign country without investigating the merits. In this
regard, Buckley, L.J. noticed what was indicated by the Privy
Council in McKee vs. McKee 2 that there may be cases in which
C 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 interest of
the child.
0 16. This Court in Smt. Surinder Kaur Sandhu v. Harbax .
Singh Sandhu and Another was concerned with the custody
of a child-British citizen by birth-to the parents of Indian
citizens, who after their marriage settled in England. The child
was removed by ~he husband from the house when the wife was
in the factory where she was working and brought him to India.
E The wife obtained an order under Section 41 (English) Supreme
Court Act, 1981 whereby the husband was directed to handover
the custody of the boy to her. The said order was later on
confirmed by the High Court in England. The wife then came to
India and filed a writ petition under Article 226 in the High Court
F praying for production and custody of the child. The High Court
dismissed her writ petition against which the wife appealed
before this Court. Y.V. Chandrachud, C.J. (as ' he then was)
speaking for the Court held thus :
"The modern theory of Conflict of Laws recognises
G and, in any event, prefers the jurisdiction of the State which
has the most intimate contact with the issues arising in the .
case. Jurisdiction is not attracted by the operation or
creation of fortuitous circwnstances such as the
circumstance as to where the child, whose custody is in
H 7. 91984) 3 sec 698.
V. RAVI CHANDRAN v. UNION OF INDIA & ORS. 981
[R.M. LODHA, J.]

---'('
j. issue, is brought or for the time being lodged. To allow the A

.
"'""
,...,
assumption of jurisdiction by another State in such
circumstances will only result in encouraging forum-
shopping. Ordinarily, jurisdiction must follow upon functional
lines. That is to say, for example, that in matters relating to
matrimony and custody, the law of that place must govern
B
which has the closest concern with the well-being of the
spouses and the welfare of the offsprings of marriage. The
. I· spouses in this case had made England their home where
this boy was born to them. The father cannot deprive the
English Court of its jurisdiction to decide upon his custody
by removing him to India, not in the normal movement of the c
matrimonial home but, by an act which was gravely
detrimental to the peace of that home. The fact that the
matrimonial home of the spouses was in England,
establishes sufficient contacts or ties with that State in order
to make it reasonable and just for the courts of that State to D
' -> assume jurisdiction to enforce obligations which were
incurred therein by the spouses. (See International Shoe
Company vs. State of Washington which was not a
matrimonial case but which is regarded as the fountainhead
I of the subsequent developments of jurisdictional issues like
the orie involved in the instant case.) It is our duty and function E
to protect the wife against the burden of litigating in an
--4
;;. inconvenient forum which she and her husband had left
voluntarily in order to make their living in England, where they
...... gave birth to this unfortunate boy."

• 17. In Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and
Another3, this Court held that it was the duty of courts in all
F

countries to see that a parent doing wrong by removing children
out of the country does not gain any advantage by his or her
wrongdoing. In para 9 of the report, this Court considered the
decision of the Court of Appeal in re H.5 and approved the same

-- ~
in the following words:
"9. In Re H. (infants) [(1966) 1 All ER 886] the Court of
Appeal in England had occasion to consider a somewhat
G

similar question. That case concerned the abduction to

8. (1987) 1 sec 42. H
982 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A England of two minor boys who were American citizens. The
father was a natural-born American citizen and the mother, ~ ..,___
though of Scottish origin, had been resident for 20 years in
the United States of America. They were divorced in 1953

B
by a decree in Mexico, which embodied provisions
entrusting the custody of the two boys to the mother with
liberal access to the father. By an amendment made in that
order in December 1964, a provision was incorporated that
..
<
-
'")
the boys should reside at all times in the State of New York
and should at all times be under the control and jurisdiction .;,, .....
of the State of New'York. In March 1965, the mother
c ,removed the boys to England, without having obtained the
approval of the New York court, and without having consulted
the father; she purchased a house in England with the
intention of remaining there permanently and of cutting off
all contacts with the father. She ignored an order made in
D June 1965, by the Supreme Court of New York State to
return the boys ttTere. On a motion on notice given by the
father in the Chancery Divisi,on of the Court in England, the "--
trial Judge Cross, J. directed that since the children were
American children and the American court was the proper
court to decide the issue of custody, and as it was the. duty
E of courts in all countries to see that a parent doing wrnng ~

by removing children out of their country did not gain any
advantage by his or her wrongdoing, the court without going
into the merits of the question as to where and with whom
the children should live, would order that the children should
go back to America. In the appeal filed against the said ~
F J>

judgment in the Court of Appeal, Willmer, L.J. while
dismissing the appeal extracted with approval the following
passage from the judgment of Cross, J. [(196!=') 3 All ER at
p·. 912. (Ed.: Source of the second quoted para could not
be traced.)]:
G
"The sudden and unauthorised removal of children
from one country to another is far too frequent ,,,,.
~

nowadays, and as it seems to me, it is the duty of all -t
/•

courts in all countries to do all they can to ensure that
the wrongdoer does not gain an advantage by his
H
(
~

V. RAVI CHANDRAN v. UNION OF INDIA & ORS. 983
[R.M. LODHA, J.]
wrongdoing. A
. _..
The courts in all countries ought, as I see it, to be
careful not to do anything to encourage this
tendency. This substitution of self-help for due
process of law in this field can only harm the
.,, interests of wards generally, and a Judge should, as 8
I see it, pay regard to the orders of the proper foreign
court unless he is satisfied beyond reasonable doubt
that to do so would inftict serious harm on the child."
.JL
10. With respect we are in complete agreement with the
aforesaid enunciation of the principles of law to be applied c
by the courts in situations such as this."
18. In the case of Dhanwanti Joshi v. Madhav Unde 9 , this
Court was again concerned with the matter relating to removal
of a child from one country to another contrary to custody order
of the court from where the child was removed. This court
considered English decisions, inter alia, McKee vs. McKee 2 and D
H. (infants), re. 5 and also noticed the decision of this Court in
Mrs. Elizabeth Dinshaw8 and observed as follows :
"28. The leading case in this behalf is the one
rendered by the Privy Council in 1951, in McKee vs. McKee
[(1951) AC 352]. In that case, the parties, who were E
American citizens, were married in USA in 1933 and lived
there till December 1946. But they had separated in
December 1940. On 17-12-1941, a decree of divorce was
passed in USA and custody of the child was given to the
--""' J. father and later varied in favour of the mother. At that stage, F
--t the father took away the child to Canada. In habeas corpus
proceedings by the mother, though initially the decisions of
lower courts went against her, the Supreme Court of
Canada gave her custody but the said Court held that the
father could not have the question of custody retried in
Canada once the question was adjudicated in favour of the G
mother in the USA earlier. On appeal to the Privy Council,
:: Lord Simonds held that in proceedings relating to custody
t- before the Canadian Court, the welfare and happiness of
the infant was of paramount consideration and the order of
9. (1998) 1sec112. H
984 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A a foreign court in USA as to his custody can be given due
weight in the circumstances of the case, but such an order .. .
of a foreign court was only one of the facts whicli must be
taken into consideration. It was further held that it was the
duty of the Canadian Court to form an independent
judgment on the merits of the matter in regard to the welfare ......
B
of the child. The order of the foreign court in US would yield
to the welfare of the child. "Comity of courts demanded not
its enforcement, but its grave consideration". This case
arising from Canada which lays down the law for Canada
and U.K. has been consistently followed in latter cases. This "'
c view was reiterated by the House of Lords in J vs. C (1970
AC 668). This is the law also in USA (see 24 American
Jurisprudence, para 1001) and Australia. (See-Khamis vs.
Khamis [(1978) 4 Fam LR 410 (Full ·Courl) (Aus)].·
29. However, there is an apparent contradiction between
D the above view and the one expressed in H. (infants); Re
[(1966) 1 All ER 886] and in E. (an i_nfant), Re [(1967) 1 All
ER 881] to the effect that the court in the country to which
the child is removed will send back the child to the country
·-
from which the child has been removed. This apparent
conflict was explained and resolved by the Court of Appeal
E in 1974 in L. (minors) (wardship: jurisdiction}, Re [(1974)
1 All ER 913, CA] and in R. (minors) (wardship :
jurisdiction}, Re [(1981) 2 FLR 416 (CA)]. It was held by the
Court of Appeal in L, Re [(1974) 1 All ER 913, CA] that the
view in McKee vs. McKee [1951 A.C. 352: (1951) All ER
F 942] is still the correct view and that the_limited question _. .,,,,
'
which arose in the latter decisions was whether the court in \.

the country to which the child was removed could car.duct j_

(a) a summary inquiry or (b) an elaborate inquir;1 on the
question of custody. In the case of (a) a summary inquiry,
the court would return custody to the country from which the
G
child was removed unless such return could be shown to be
harmful to the child. In the case of (b) an elaborate inquiry, ~
..___
the court could go into the merits as to where the permanent
-+
welfare lay and ignore the order of the foreig:n court or treat
the fact of removal of the child from another country as only
H one of the circumstances. The crucial question as to whether
V. RAVI CHANDRAN v. UNION OF INDIA & ORS. 985
[R.M. LODHA, J.]

~
the Court (in the country to which the child is removed) would A
~
exercise the summary or elaborate procedure is to be
determined according to the child's welfare. The summary
jurisdiction to return the child is invoked, for example, if the
child had been removed from its native land and removed
to another country where, maybe, his native language is not
B
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 is
being subjected to a foreign system of education, - for
these are all acts which could psychologically disturb the
child. Again the summary jurisdiction is exercised only if the c
court to which the child has been removed is moved promptly
and quickly, for in that event, the Judge may well be
persuaded that it would be better for the child that those
merits should be investigated in a court in his native country
on the expectation that an early decision in the native country D
could be in the interests of the child before the child could
develop roots in the country to which he had been removed.
Alternatively, the said court might think of conducting an
elaborate inquiry on merits and have regard to the other
facts of the case and the time that has lapsed after the
removal of the child and consider if it would be in the E
interests of the child not to have it returned to the country
from which it had been removed. In that event, the
unauthorised removal of the child from th~ native country
..... would not come in the way of the court in the country to which
the child has been removed, to ignore the removal and F
independently consider whether the sending back of the
child to its native country would be in the paramount interests
of the child. (See Rayden & Jackson, 15th Edn., 1988, pp.
1477-79; Bromley, Family law, 7th Edn., 1987.) In R.
(minors) (wardship : jurisdiction), Re [( 1981) 2 FLR 416
(CA)] it has been firmly held that the concept of forum
G
conveniens has no place in wardship jurisdiction.
+ 30. We may here state that this Court in Elizabet/1 Dinshaw
vs. Arvand M. Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Crl.)
13] while dealing with a child removed ·by...th~ father from
USA contrary to the custody orders of the US Cou·rtdirected H
986 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A that the child be sent back to USA to the mother not only
·+ ,,...
because of the principle of comity but also because, on
facts, - which were independently considered - it was in
the inte.rests of the child to be sent back to the native State.
There the removal of the child by the father and the mother's
application in India were within six months. In that context,
B
this Court referred to H. (infants), Re which case, as pointed
out by us above has been explained in L. Re. as a case
where the Court thought it fit to exercise its summary ..,
as
jurisdiction in the interests of the child. Be that it may, the
general principles laid down in McKee v. McKee and J v.
c . C and the distinction between summar:Y and elaborate
inquiries as stated in L. (infants), Re are today' well settled
in UK, Canada, Australia and the USA. The same principles .
apply in our country. Therefore nothing precludes the Indian
courts from considering the question on merits, having
D regard to the delay from 1984 - even assuming that the
earlier orders passed in India do not operate as constructive ...
res judicata."
;;.
However, in view of the fact that the child had lived with his
mother in India fornearlytwelve years, this Court held that it would
not exercise a summary jurisdiction to return the child to United
E States of America on the ground that its removal from USA in
1984 was contrary to orders of U.S. Courts. It was also held that
whenever a question arises before a court pertaining to the
custody_ of a minor child, matter is to be decided not on
· considerations of lhe legal· rights of the parties but on the sole ,;

F : and predominant criterion of what would best serve the interest
of the minor.
19. In the case of Sarita Sharma v. Sushi/ Sharma 10 , this
Court was seized with a matter where the mother had removed
the children from U.S.A. despite the order of the American Court.
G It was held:
"6. Therefore, it will not be proper to be guided entirely
by the fact that the appellant Sarita had removed the children
from U.S.A. despite the order of the Court of that country. +
So also, in view of the facts and circumstances of.the case,
H 10. (2000) 3 sec 14.
V. RAVI CHANDRAN v. UNION OF INDIA & ORS. 987
[R.M. LODHA, J.]
the decree passed by the American Court though a relevant A
factor, cannot override the consideration of welfare of the
minor children. We have already stated earlier that in U.S.A.
respondent Sushil is staying along with his mother aged
about 80 years. There is no one else in the family. The
respondent appears to be in the habit of taking excessive
8
alcohol. Though it is true that both the children have
American citizenship and there is a possibility that in U.S.A
they may be able to get better education, it is doubtful if the
respondent will be in a position to take proper care of the
children when they are so young. Out of them, one is a
female child. She is aged about 5 years. Ordinarily, a female .C
child should be allowed to remain with th~ mother so that
she can be properly looked after. It is also not desirable that
two children are separated from each other. If a female child '
has to stay with the mother, it will be in the interest of both
the children that they both stay with the mother. Here in India ,0
also proper care of the children is taken and they are at
present studying in good schools. We have not found the
appellant wanting in taking proper care of the children. Both
the children have a desire to stay with the mother. At the
same time it must be said that the son, who is elder then
the daughter, has good feelings for his father also. E
Considering all the aspects relating to the welfare of the
children, we are of the opinion that in spite of the order
passed by the Court in U.S.A. it was not proper for the High
Court to have allowed the habeas corpus writ petitton and
directed the appellant to hand over custody of the children F
to the respondent and permit him to take them away to
U.S.A. What would be in the interest of the children requires
' a full and thorough inquiry and, therefore, the High Court
...l should have directed the respondent to initiate appropriate
proceedings in which such an inquiry can be held. Still there G
is some possibility of the mother returning to U.S.A. in the
interest of the children. Therefore, we do not desire to say
anything more regarding entitlement of the custody of the
children. The chances of the appellant returning to U.S.A.
with the children would depend upon the joint efforts of the
appellant and the respondent to get the arrest warrant H
988 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A cancelled by explaining to the Court in U.S.A. the
circumstances under which she had left U.S.A. with the
children without taking permission of the Court. There is a
possibility that both of them may thereafter be able to
approach the Court which passed the decree to suitably
modify the order with respect to the custody of the children
B
and visitation rights." .
20. While dealing with a case of custody of a child removed
by a parent from one country to another in contravention to the
orders of the court where the parties had set up their matrimonial
home, the court in the country to which child has been removed
C 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 rernoved and all
aspects relating to child's welfare be investigated in a court in
D his own country. Should the court take a view that an elaborate
enquiry is necessary, obviously the court is bound to consider
the welfare and happiness of the child as the paramount
consideration and go into all relevant aspects of welfare of child
including stability and security, loving and understanding care and
guidance and full development of the child's character,
E 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. However, in a case where the court
decides to exercise its jurisdiction summarily to return the child
F 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
G be in the best interest of the child. The indicatior:i given in McKee
vs. McKee2 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 interest of the child has been
H explained in re. L (minors) 6 and the said view has been approved
V. RAVI CHANDRAN v. UNION OF INDIA & ORS. 989
[R.M. LODHA, J.]
by this Court in Dhanwanti Josh1'9. Similar view taken by the Court A
of Appeal in re. H5 has been approved by this Court in Elizabeth
" +
Dinshaw8.
21. Do the facts and circumstances of the present case
warrant an elaborate enquiry into the question of custody of minor
Adithya and should the parties be relegated to the said B
procedure before appropriate forum in this country in this regard?
In our judgment, this is not required. Admittedly, Adithya is an
American citizen, born and brought up in United States of
America. He has spent his initial years there. The natural habitat
of Adithya is in United States of America. As a matter of fact,
keeping in view the welfare and happiness of the child and in c
his best interest, the parties have obtained series of consent
orders concerning his custody/parenting rights, maintenance etc.
from the competent courts of jurisdiction in America. Initially, on
April 18, 2005, a consent order governing the issues of custody
and guardianship of minor Adithya was passed by the New York D
State Supreme Court where under the court granted joint custody.
~ of the child to the petitioner and respondent no. 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 July 28, 2005, the consent order dated
April 18, 2005 regarding custody of minor son Adithya continued. E
In September 8, 2005 order whereby the marriage between the
petitioner and respondent no. 6 was dissolved by the New York
State Supreme Court, again the child custody order dated April
18, 2005 was incorporated. Then the petitioner and respondent
~ no. 6 agreed for modification of the custody order and, F
accordingly, the Family Court of the State of New York on'June
18, 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. The fact that all orders concerning the custody
G
of the minor child Adithya have been passed by American courts
by consent of the parties shows that the objections raised by
,;
respondent no. 6 in counter affidavit about deprivation of basic
rights of the child by the petitioner in the past; failure of petitioner
to give medication to the child; denial of e~ucation to the minor
H

/
990 SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.

A child; deprivation of stable environment to the minor child; and
child abuse are hollow and without any substance. The objection
raised by the respondent no. 6 in the counter affidavit that the
American courts which passed the order/decree had no
jurisdiction and being inconsistent to Indian laws cannot be
executed in India also prima facie does not seem to have any
8
merit since despite the fact that the respondent no. 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
C and without jurisdiction. Rather it transpires from the counter
affidavit that initially respondent no. 6 initiated the proceedings
under Guardianship and Wards Act but later on withdrew the
same. The facts and circumstances noticed above leave no
manner of doubt that merely because. the child has been brought
D to India by respondent no. 6, the custody issue concerning mir'lDr
child Adithya 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 Ghi!(l 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
E of the child, i.e. 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.
22. It is true that child Adithya has been in India for almost
F two years since he was removed by the mother-respondent no.
6-=Gontrary to the custody orders of the U.S. court passed by
consent of the parties. It is also true that one of the factors to be
kept in mind in exercise of summary jurisdiction in the interest
of child is that application for custody/return of the child is made
G promptly and quickly after the child has been removed. This is
so because any delay may result in child developing roots in the
country to which he has been removed. From the counter affidavit
that has been filed by respondent no. 6, it is apparent that in last
two years child Adithya did not have education at one place. He
has moved from one school to another. He was admitted in school
H at Dehradun by respondent no. 6 but then removed within few

~I
V. RAVI CHANDRAN v. UNION OF INDIA & ORS. 991
[RM. LODHA, J.]
rnonths. In the month of June, 2009, the child has been admitted' A
-+
/ in some school at Chennai. As a matter of fact. the minor child
Adithya and respondent no. 6 could not be traced and their
whereabouts could not be found for more than two years since,
the notice was issued by this Court. The respondent no: 6 and,
the child has been moving from one State to another. The parents
B
of respondent no. 6 have filed an affidavit before this Court,
denying any knowledge or awareness of the whereabouts of
respondent no. 6 and minor child Adithya ever since they left in
September, 2007. In these circumstances, there has been no ,
occasion for the child developing roots in this country. Moreover,
the present habeas corpus petition has been filed by the c
petitioner promptly and without any delay, but since the
respondent ro. 6 has been moving from one State to another
and her whereabouts were not known, the notice, could not be
serve_d and child could not be produced for more than two years.
23. In a case such as the present one, we are satisfied that D
-f
return of minor Adithya to United States of America, for the time
being, from where he has been removed and brought here would
;..
be in the best interest of the child and also such order is justified
in view of the assurances given by the petitioner that he-would
bear all the traveling expenses and make living arrangements ,
for respondent no. 6 in- the United Sates of America till the E
necessary orders are passed by the competent court; that the
petitioner would comply with the custody/parenting rights as per
consent order dated June 18, 2007 till such time as the competent
court in United States of America takes a further decision; that
the petitioner will request that the warrants against respondent F
no. 6 be dropped; that the petitioner will not file or pursue any
criminal charges for violation by respondent no. 6 of the consent
order in the United States of America and that if any application
is filed by respondent no. 6 in the competent court in United
States of America, the petitioner shall cooperate in expeditious
G
hearing of such application. The petitioner has also stated that
\
he has obtained confirmation from Martha Hunt Elementary
,\
School, Murphy, Texas, 75094, that minor son Adithya will be
admitted to school forthwith.
24. The learned Senior Counsel for respondent no. 6 sought
H
992 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A to raise an objection regarding the maintainability of habeas
~ '
corpus petition under Article 32 of the Constitution before this
Court but we are not persuaded to accept the same. Suffice it
to say. that in the peculiar facts and circumstances of the case
which have· already been noticed above and the order that we
8 intend to pass, invocation of jurisdiction of this Court under Article
32 cannot be said to be inappropriate.
25. We record our appreciation for the work done by the
concerned· officers/officials of CBI in tracing the minor child
Adithya and producing·him in less than two months of the order
passed by this Court, although, the Police Officers and Officials
c of different States failed in tracing the child Adithya and
respondent no. 6 for more than two years. But for the earnest
efforts on the part of the CBI authorities, it would not have been
possible for this Court to hear and decide this habeas corpus
petition involving the sensitive issue concerning a child of seven ·
D years who is a foreign national.
26. In the result and for the reasons stated, we pass the ,...
following order : •'
(i) The respondent no. 6 shall act as per the consent
order dated June 18, 2007 passed by the Family Court of
E the State of New York till such time any further order is
passed on the petition that may be moved by the parties
henceforth and, accordingly, she will take the child Adithya
of her own to the United States of America within fifteen
days from today and report to that court.
(ii) The petitioner shall bear all the traveling expenses
F
of the respondent no. 6 and minor child Adithya and make
arrangements for the residence of respondent no. 6 in the
United States of America till further orders are passed by
the competent court.
.
..,._

(iii) The petitioner shall request the authorities that the
G warrants against respondent no. 6 be dropped. He shall not
file or pursue any criminal charges for violation by
respondent no. 6 of the consent order in the United States I.

of America.
(iv) The respondent no. 6 shall furnish her address and
H contact number in India to the CBI authorities and also
-
" V. RAVI CHANDRAN v. UNION OF INDIA & ORS. 993
[R.M. LODHA, J.]
inform them in advance the date and flight details of her A
_. departure along with child Adithya for United States of
America.
~ (v) In the event of respondent no. 6 not taking the child
Adithya of her own to United States of America within fifteen
i days from today, child Adithya with his passport shall be B.
restored to the custody of the petitioner to be taken to United
States of America. The child will be a ward of the concerned
court that passed the consent order dated June 18, 2007.
~ It will be open to respondent no. 6 to move that court for a
review of the custody of the child, if so advised.
(vi) The parties shall bear their own costs. c
K.K.T. Writ Petition disposed of.

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