Naveen Sharma Vs State Of Rajasthan And Ors

All the three matters raise the dispute between the same parties, therefore, they are being decided by this common judgment.

D.B. Habeas Corpus Petition No.106/2015 has been filed by the petitioner-husband praying for issue of a writ of habeas corpus directing respondent

no.2 Meenal Bhargav alias Sharma to produce before the court the minor child Pranav Sharma, permanent resident of Canada and a citizen of U.S.,

(whose date of birth is 22.08.2009) and cause his return along with the respondent no.2 to the jurisdiction of the Court of Canada in compliance of the

orders dated 02.04.2015 and 16.04.2015 passed by the Superior Court of Justice, Family Court Hamilton, Ontario in File No.3173/2014 to enable him

(the minor child) to go back to Canada and upon her failure to do so, the respondent no.2 be directed to handover the custody of the minor child

Pranav Sharma to the petitioner to enable him to take the minor child Pranav Sharma back to the jurisdiction of Ontario Court, Canada. Further prayer

is made for a direction to the respondent no.2 to handover the requisite documents such as PIO card and passport and other travel documents of the

minor child Pranav Sharma, which are in her custody, to the petitioner-father in order to facilitate return of the minor child Pranav Sharma to Ontario,

Canada.

D.B. Civil Contempt Petition No.1846/2017 has been filed by the petitioner praying for initiating contempt proceedings against the respondent Meenal

Bhargav for having willfully and intentionally violated the terms of the final consent order dated 17.12.2015 and award appropriate punishment by

sentencing her to imprisonment in accordance with the provisions of the Contempt of Courts Act, 1971. Further prayer is made for repatriation of the

minor child back to USA in consonance with the terms and conditions as agreed vide consent final order dated 17.12.2015.

D.B. Civil Miscellaneous Application No.135/2018 has been filed on 16.05.2018 by the petitioner for revival of the D.B. Civil Contempt Petition

No.1846/2017 and adjudicate the same on merits expeditiously in terms of the judgment and order dated 09.05.2018 of the Supreme Court in Civil

Appeal No.1606/2018 and Civil Appeal No.3629/2018. Since the contempt petition has been revived pursuant to the aforesaid judgment of the

Supreme Court, the application has become infructuous and is accordingly disposed of.

The petitioner-Naveen Sharma is an American citizen. He has been working in the IT sector in US since October, 2004. His marriage with

respondent-Meenal Bhargav was solemnized on 14.10.2007 at Ajmer in India. The respondent-wife (for short-the respondent) thereafter moved to

USA to join the petitioner- husband. According to the petitioner, the respondent was dentist in India. She decided to practice in the USA. However,

despite repeated attempts, she failed to qualify the qualifying examination of that country. They then decided to shift to Canada, where also the

respondent was required to qualify the written examination. She started studying in Canada Hygiene School (Ontario Dental Hygiene Institute

Ancaster) for which the petitioner paid the school expenses by taking loan of 7500 dollars. They jointly applied for the Canadian permanent citizenship

in 2008. The petitioner and the respondent were blessed with a baby son on 22.08.2009 in Baltimore, USA who was named Pranav Sharma. They

then migrated to Canada in 2010 and became Canadian immigrants. As per the allegation of the petitioner, the respondent intentionally removed the

minor child Pranav without his consent from the jurisdiction of Ontario, Canada to Buffalo (USA) from where she moved to New Jersey with the

minor child Pranav where her brother was residing. According to the petitioner, despite his repeated requests to return to Chicago along with the

minor child Pranav, the respondent, without the consent of the petitioner, took a flight from New jersey to India along with the minor child. The

petitioner visited India in November, 2013 and April, 2014 to impress upon the respondent to return back to USA or Canada along with the minor child

but she and her family members did not even let him meet his son and threatened him of dire consequences. In these circumstances, the petitioner

filed a petition before the Superior Court of Justice, Hamilton, Canada on 14.8.2014 for custody of the child. Summons were purported to have been

served upon the respondent by e-mail and thereafter the Superior Court of Justice, Family Court, Hamilton, Canada vide order dated 28.10.2014,

awarded the sole custody of the minor son Pranav Sharma to the petitioner with the right to take necessary steps to renew the child’s American

passport without the consent of the respondent. The said order was also served upon the respondent.

It is pertinent to note that the respondent filed a petition under Section 25 of the Guardian and Wards Act, 1890 (for short, ‘the Act of 1890’)

seeking guardianship of the minor child Pranav Sharma before the Family Court at Ajmer on 14.10.2014. On the other hand, the petitioner got the

aforesaid order dated 28.10.2014 duly registered with the Circuit Court of Cook County, Illinois, Country Department, Domestic Relations Division,

USA for issuance of a US passport in the absence of the child. The petitioner, upon learning about the proceedings in the Family Court, Ajmer, filed

an application on 20.12.2014 under Order 7 Rule 11 of the Code of Civil Procedure objecting to the jurisdiction of the Family Court, Ajmer, to deal

with the issue of custody of the minor child Pranav. By consent order dated 22.01.2015, the Court at Illinois vacated the order dated 14.11.2014 in its

entirety with liberty to the parties to get the issue of jurisdiction adjudicated upon by the Ontario Court first and then only any inquiry shall be

embarked upon by the court concerned. The matter was taken up by the Superior Court of Justice, Family Court, Hamilton, Ontario, on 17.03.2015 on

the petitioner filing a motion stating that the Ontario Court had the jurisdiction to deal with the custody and access issues in the matter of the minor

child, whereas the respondent through her lawyer sought an order to the effect that the court does not have such jurisdiction. The Ontario Family

Court, however, held that it had the appropriate jurisdiction to determine the issue of custody and access relating to the minor child Pranav Sharma. It

held that according to Section 22(2)(a) of the Children’s Law Reform Act (for short, ‘the CLRA’) on July 27, 2013, Pranav’s habitual

residence was at Ontario. The Ontario Family Court further held that the evidence was clear to the effect that the petitioner never explicitly or

implicitly consented or acquiesced to the respondent on removal of the child from Ontario or on her keeping the minor child in India and his retention in

India and that India is more convenient forum on balance of probabilities. The petitioner thereafter moved a motion seeking custody of the minor child.

The Superior Court of Justice, Family Court, Hamilton, Ontario, by order dated 02.04.2015 directed that respondent shall be served with the notice of

motion by courier as well as by e-mail and hearing of the motion was adjourned to 16.04.2015. It further directed that the respondent shall appear in

person in the court on 16.04.2015 and also return the minor child Pranav Sharma born on 22.08.2009 to the territorial jurisdiction of the Court by no

later than 15.04.2015 so that the child is present at the jurisdiction at the time of hearing. Upon failure of the respondent to appear before the court on

that date, the Superior Court of Justice, Family Court, Hamilton, Ontario, on 16.04.2015 passed an order granting sole custody of the minor child

Pranav Sharma to the petitioner, with further direction that all the Law Enforcement Agencies including the INTERPOL, appropriate foreign police

and border agencies should enforce the custody order granted by the court and shall do all things reasonably to locate, nab and deliver the child to the

petitioner. The petitioner was also given the right to renew the minor child’s passport without the consent of the respondent to facilitate the minor

child’s return to Canada. Furthermore, a warrant was also issued against the respondent with imposition of cost of 30,000$ upon her. It is against

the backdrop of these facts that petitioner approached this court by filing the habeas corpus petition with the prayer stated above.

Considering the nature of the dispute, this court referred the parties for mediation. The efforts made by the learned Mediator resulted in successful

settlement of the dispute between them on certain terms, in the light of which the habeas corpus petition was disposed of by order dated 17.12.2015 in

the following terms:-

“Husband Naveen Sharma and wife Meenal are present in person. They both have minor son Pranav.

In the present Habeas Corpus Petition, the husband has claimed custody of Pranav on the basis of orders dated 02.04.2015 and 16.04.2015 passed by

the Superior Court of Justice, Family Court, Hamilton, Ontario in Court File No.3173-14. The wife is presently residing in Ajmer along with Pranav,

whereas husband is an American citizen having his domicile in USA.

Having regard to the nature of dispute between the parties, this Court referred the matter for mediation for amicable settlement. After mediation, the

parties have agreed to live together by resolving their differences on following terms:-

“(1) Both the parties will withdraw their respective cases within 4 months from today.

(2) Mr.Naveen Sharma will find out 3-4 flats for choice of Smt.Meenal and Smt.Meenal will then go to U.S.A. to select one of them. This process

should complete within 18 months.

(3) In the meantime Mr.Naveen Sharma will come to India to meet Mrs.Meenal and Pranav at least for 3 time. Similarly Mrs.Meenal will go to

U.S.A. along with her son under the security with condition that Mr.Naveen will arrange all their expenses including travelling expenses and will

undertake that if both of them desire to return India then Mr.Naveen will arrange their safe return to India.

(4) The flat which is going to purchase by Mr.Naveen Sharma should be in joint name of both party. None of the party will entitle to sale this flat or

it's any part independently. Mr.Naveen Sharma will arrange collateral security against loan and in no case the flat should be taken from ownership and

possession of Mrs.Meenal Sharma. In case any mishapening the flat will remain in ownership of Mrs.Meenal Sharma.

(5) Mr.Naveen, Mrs.Meenal and Pranav will live jointly at U.S.A. after purchase of flat. None of the family member of both parties will disturb and

interfere in their lives.

Sd/- Mediator Rajasthan High Courtâ€​

Unfortunately, however, the settlement intended to achieve win-win situation for both the parties did not turn into reality. Both the parties made

allegation against each other for violating the terms of the settlement. The petitioner filed Civil Miscellaneous Application No.505/2017 seeking revival

of the habeas corpus proceedings on the ground that the respondent was in breach of the order dated 17.12.2015. On the observations made by

coordinate bench of this court that in case of any breach or disobedience of the order, he had an alternative remedy, the petitioner withdrew the

application with liberty to initiate the contempt proceedings against the respondent. The petitioner thus filed civil contempt petition before this court

against the respondent. A coordinate bench of this court vide judgment 09.01.2018 decided the contempt petition by punishing the respondent no.2 with

six months’ civil imprisonment under Section 12(1) read with Section 12(3) of the Contempt of Court Act with direction to surrender within four

weeks. The petitioner was however set at liberty to get the Canadian Court’s order dated 16.04.2015 executed for custody of the child. The

coordinate bench of this court by the same order, dismissed the Application No.684/2017 of the respondent and refused to recall the consent order

dated 17.12.2015.

Both the petitioner and the respondent approached the Supreme Court by filing Civil Appeal No.1606/2018 and Civil Appeal No.3629/2018 against the

aforesaid common judgment. The Supreme Court allowed the appeal filed by the respondent in entirety and set aside the order of this court, whereby

she was punished for contempt leaving it open to the petitioner to press the contempt petition before this court and observed that if he so chooses, the

High Court shall decide the contempt petition in the light of observations made keeping in view the fact whether the respondent was correct in her

statement that it is the petitioner who did not take necessary steps to ensure that she joins her company. The Supreme Court also partly allowed the

appeal filed by the petitioner by setting aside the judgment of this court to the extent that liberty was given to him to seek execution of the order of the

Canadian Court. However, the order dated 05.10.2017 passed on D.B. Civil Miscellaneous Application No.505/2017 filed by the respondent (which in

the judgment of Supreme Court has been referred to as the application filed by the petitioner-father) was set aside and the Habeas Corpus Petition

was revived in order to decide whether the custody of minor child Pranav is to be handed over to his father. This is how the Habeas Corpus Petition

as well contempt petition have come up for decision on merits afresh.

We have heard the learned counsel for the parties and perused the material on record.

Ms. Rose Marry Raju, the learned counsel for the petitioner has argued that the petitioner and the respondent were admittedly staying in Ontario,

Canada. The minor child Pranav Sharma is a US citizen and resident of Canada. The Canadian Court, vide orders dated 02.04.2015 and 16.04.2015

directed the minor child to be repatriated back to Ontario, Canada. The respondent duly participated in the proceedings in the Ontario Court and

challenged the jurisdiction of the Ontario to try the issue of the custody of minor child. The Court of Ontario, vide order dated 17.03.2015, overruling

the objection of the respondent held that it had requisite jurisdiction to adjudicate upon the issue of custody of minor child. The Canadian Court, vide

order dated 02.04.2015, further directed that the minor child should be made present before the Ontario Court on 16.04.2015. The Canadian Court

again by order dated 16.04.2015 directed the minor child to be repatriated back to US. The respondent filed an appeal against the order dated

16.04.2015 but the said appeal was dismissed for non-prosecution by the Court of Appeal for Ontario on 17.06.2015. It is, therefore, argued that the

respondent duly acquiesced to the jurisdiction of the foreign court and till date there is no order from any Indian Court regarding the care and custody

of the minor child Pranav Sharma. The petitioner initiated proceedings before this court way back in July, 2015, for repatriation of the minor child to its

native country. The respondent filed the counter affidavit and when the parties were sent for mediation, they agreed to settle the matter. It is evident

from the order of this court dated 17.12.2015 that the respondent agreed to come back to US with the minor child Pranav Sharma. The respondent

herself was guilty of violating the terms of the settlement when she failed to come to US to select a flat offered by the petitioner. There is neither any

allegation nor any material placed on record to suggest that any harm would be caused to the minor child if he is repatriated back to the court at

Ontario. The learned counsel for the petitioner, in support of her arguments, has relied on the judgments of the Supreme Court in Dr. V. Ravi Chandra

Vs. Union of India and Others â€" (2010) 1 SCC 174, Surya Vadanan Vs. State of Tamil Nadu and Another â€" (2015) 5 SCC 450 and Arathi Bandi

Vs. Bandi Jagadrakshaka Rao â€" (2013) 15 SCC 790. She also relied on a judgment of the Division Bench of the Andhra Pradesh High Court dated

08.02.2018 in Sobhan Kodali Vijayawada Vs. State of Telengana in Writ Petition No.36945/2017, which according to her, has been upheld by the

Supreme Court.

It is argued that the petitioner is in gainful employment in US. Keeping in view his status being an American citizen as well as Canadian resident, he is

more able to provide for the child as compared to his mother, i.e. respondent. The minor child Pranav Sharma holds a US passport and his presence

and custody in India is unlawful being contrary to the mandate of the Canadian Court order. He has no status in this country as India does not permit

US citizens to stay here without lawful permission. He is therefore liable to be repatriated back to US. Moreover the minor child Pranav Sharma is

suffering from acute asthmatic health issue and the respondent therefore agreed during hearing in the court on 17.12.2015 that the minor child be

repatriated back to US as she was aware that staying in America would be more beneficial to him. The respondent herself is being treated for throat

cancer, which factor is highly detrimental to welfare the child. The respondent is not working and is solely dependent upon the money from her aging

mother’s pension and also her maternal aunt who is suffering from epilepsy and, therefore, the minor child cannot be looked after properly while in

Ajmer.

Ms. Rose Marry Raju, the learned counsel for the petitioner has refuted the contention of the respondent that the minor child having now remained in

India for over four years has developed roots hear. It is submitted that the respondent herself on 17.12.2015 agreed to take back the minor child on the

condition that the petitioner would come to India three times in a year. The petitioner duly complied with that condition and came to India for three

times and waited for 18 months. However, the respondent did not obey the terms of the consent order and delayed the repatriation of the minor child

Pranav Sharma to US/Canada. Such delay is wholly attributable to the respondent. She cannot therefore be permitted to take the benefit of her own

fault. The learned counsel for the petitioner, in support of the argument, has relied on the judgment of the Supreme Court in Arathi Bandi, supra, and

submitted that therein even after five years of the child staying in India, the child was repatriated back to the US. The petitioner is a permanent

resident of Canada, which is evident from his driving license issued by the Canadian authorities at Ontario. The allegation that the petitioner is a

weekend father, has been emphatically denied. It is submitted that the petitioner along-with the respondent shifted to Ancaster, Canada so that the

respondent could pursue her dental studies. The respondent very well knew that the petitioner used to travel for work and she is taking wrong

advantage of his hardworking virtue. The very fact that the petitioner has been in litigation with the respondent with regard to custody of the minor

child for last four years shows his perseverance, love and affection for the minor child. The petitioner has been taking leave from the work and

fighting a legal battle for the last four years only to ensure that the minor child is given the best qualify of life, health and education by bringing him

back to Canada, which is his habitual residence. The respondent has been heavily tutoring the minor child and engaging in parental alienation by not

allowing him to meet the petitioner.

It is argued that filing of the petition before the Family Court at Ajmer under the Act of 1890, claiming guardianship of the minor child by the

respondent is wholly misconceived. According to Section 9 of the Act of 1890, such petition may be filed before the Family Court of competent

jurisdiction only if a minor is ordinarily resident of that area or is an Indian citizen. Herein, admittedly the minor child is an American citizen born in

USA and holding a valid American passport. The Family Court at Ajmer would therefore have no jurisdiction to entertain such a petition. Reliance in

support of this argument has been placed on the judgment of the Delhi High Court in Paul Mohinder Gahun Vs. Selina Gahun â€" 2006 (130) DLT

524. It is argued that the sole effort of the petitioner is to bring his minor child back to Canada along-with the respondent, so that they can live happily

as a family and reconcile all differences. The intention of the petitioner is substantiated from the fact that presently there was no case pending in the

Canadian Court. In fact, the Canadian Court issued a warrant against the respondent on 16.04.2015 but as per the settlement agreement between the

parties, the petitioner got the aforesaid warrant withdrawn, but the same has since been revived as the respondent did not honour the terms of the

settlement. The allegation of the respondent that the order dated 02.04.2015 passed by the Canadian Court was not served on her is absolutely

incorrect. It was very much stated in para 19 of the petition that the said order was serviced on the respondent through e-mail or courier and the

respondent in the reply thereto admitted that she received the courier on 12.04.2015 and has not denied service through email. Moreover, the said

order was duly served upon the lawyer of the respondent Ms. Ann Stoner in Canada, who was representing her in the Canadian Court.

Learned counsel submitted that contention of the respondent that according to Section 13 of the Civil Procedure Code, the orders of the Canadian

Courts cannot be operational in India, is wholly without any merit. This argument could be available to the respondent only if it is shown that such

order has not been pronounced by a court of competent jurisdiction or where it has not been passed on the merits of the case. In fact, the orders in

Canada have been pronounced by the competent court of jurisdiction as order dated 17.03.2018 on the point of jurisdiction has been passed by the

Canadian Court on the emergency petition filed on behalf of the respondent and the orders have been passed on merits inasmuch as such orders are

not opposed to public policy or international policy and further the orders of the Canadian Court are not against any laws applicable in India. In fact,

the petitioner is not seeking execution or enforcement of the orders of the Canadian Court in India but is seeking repatriation of his minor son to his

native country, which issue has to be decided by this court keeping in view the welfare of the minor child. Even otherwise, none of the orders passed

by the Canadian Court has till date been declared null and void by any Canadian appellate court. The respondent has wrongly alleged that the minor

child Pranav Sharma was not going to a school in Canada but was going to a Creche. In fact, he was going to Montessori school in Canada and not a

Creche. The minor child Pranav Sharma, who is now living in India without any VISA/OCI card or Indian Passport, has been admitted to a school in

Ajmer without there being any proof of his being Indian citizen and without his father’s consent.

Per contra, Ms. Suruchi Kasliwal, the learned counsel for the respondent submitted that India is not a signatory/member of the Hague Convention and

is therefore not bound by the order of the Canadian Court. A habeas corpus petition cannot be used as a tool to seek execution of the order of the

Canadian Court, which cannot be considered as the welfare of the child. On a prima facie examination of the order dated 28.10.2014 passed by the

Canadian Court, one finds that it is contingent upon the petitioner to take a primary residence within the jurisdiction. However, the petitioner has

nowhere substantiated that he has taken a primary residence in Canada. No doubt, he furnished his sister’s address in the petition but in para 2 of

the petition he says that he is domiciled in the USA, therefore, the validity of his submission that he has been declared sole custodian of his son by the

Canadian Court is doubtful. The House No.5235, West Leland, Chicago, was sold off on 01.04.2018, which is clear from the document Annexure-

RA1 to the Additional Affidavit dated 11.10.2018, and therefore the petitioner cannot now be a resident of the said address. The respondent has vide

the Additional Affidavit filed on 26.11.2018 submitted proof of the petitioner’s working in India with Shastra Corporation, which also has an office

in the USA. Therefore, when the petitioner is no more working in Canada, he is wrongly seeking to enforce Canadian Court’s order. The

petitioner has misled this court by filing a wrong affidavit. In support of the arguments, the learned counsel for the respondent has relied on the

judgment of the Supreme Court in International Woolen Mills Vs. Standard Wool (U.K.) Ltd. - AIR 2001 SC 213.4 The application for custody of the

child has already been filed before the competent court at Ajmer, where the petitioner not only appeared but has also filed an application seeking

dismissal thereof, but later abstained from those proceedings. The petitioner ought to therefore participate in the proceedings before the Family Court,

Ajmer. Reliance in support of the argument is placed on the judgment of the Supreme Court in Kanika Goel Vs. State of Delhi & Anotherâ€"AIR

2018 SC 3425.

It is argued that as per Section 19(b) of the Hindu Minority and Guardianship Act, the mother is also a legal guardian, which aspect has been ignored

by the Canadian Court. Section 19 of the Act of 1890 provides that nothing in that Act shall authorize the court to appoint or declare a guardian of the

property of a minor whose property is under the superintendence of a Court of Wards or to appoint or declare a guardian of the person of a minor,

other than a married female, whose father or mother is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor.

Therefore, as per the Indian laws a court has to first determine and adjudicate upon the ‘unfitness’ of a parent and only then can it direct

custody of the child to be given from one parent to another. The Canadian Court neither has considered this aspect nor welfare of the child, which is

mandatory requirement under Section 17(3) of the Act of 1890. The order passed by the Canadian Court is thus in violation of the law and, therefore,

is not enforceable by virtue of the provisions contained in Section 13 of the CPC. The order of the Canadian Court is in the nature of a foreign decree

and is therefore not enforceable in India being in violation of Section 13(c) of the CPC. The respondent has under challenged its enforceablity in India

before the competent civil court of law at Ajmer as the order was passed in the absence of respondent without examining the merits of the case.

Ms. Suruchi Kasliwal, the learned counsel for the respondent, argued that the writ of habeas corpus flows from Article 21 of the Constitution of India,

which guarantees liberty to a person and strikes down its curtailment if not in accordance with the established procedure prescribed in law. Therefore,

the first question for determination is whether the ‘body’ that the petitioner seeks, has been deprived of his liberty against the established

procedure and is in illegal/unlawful/unauthorized/ unjustified custody, which the petitioner failed to prove. Reliance in support of the argument has been

placed on the judgment of the Supreme Court in Union of India Vs. Yumnam Anand â€" (2007) 10 SCC 190 and the observations made by the

Supreme Court in para 47 of the judgment in Nithya Anand Raghavan vs. State (NCT of Delhi)-(2017) 8 SCC 45.4 The habeas corpus petition can be

filed and maintained only for production of a person kept in illegal/unlawful/unauthorized/unjustified custody. Admittedly, as per the petitioner’s

own showing the minor child in this case is in the custody of his biological mother. The habeas corpus petition therefore cannot be maintained. This

question is no more res integra in view of the dictum of law enunciated by the Supreme Court in Kanika Goel, supra. Even otherwise, the minor child

has been satisfactorily produced before this court as well as the Supreme Court, where the petitioner repeatedly interacted with him. Therefore, there

is no cause surviving regarding the person whose body is sought being in an illegal custody. The habeas corpus petition therefore does not survive. The

writ of habeas cannot be used for mere enforcement of the direction given by the foreign court against a person within its jurisdiction and convert that

jurisdiction into that of an executing court. Once the petition has ceased to be maintainable as habeas corpus petition, the second prayer of the

petitioner for repatriation of the child along-with his mother to submit to the jurisdiction of the Canadian Court being in nature of writ of mandamus,

also would not be maintainable as no mandamus can be issued against a private person. Reliance in support of this argument is placed on the judgment

of the Supreme Court in Praga Tools Corporation Vs. Shri C.A. Imanual and Others â€" AIR 1969 SC 130.6 When a proceeding which is the

prescribed remedy in the matter of guardianship is already pending, where both the parties have entered appearance and the dispute could be

appropriately dealt with by the Family Court, Ajmer, in Suit No.78/2014 filed under the Act of 1890, the invocation of a writ under extraordinary

jurisdiction, may not be maintainable. Relying on the judgment of the Supreme Court in R.V. Srinath Prasad Vs. Nandamuri Jaykrishna and Others

â€" (2001) 4 SCC 71, the learned counsel for the respondent argued that the custody of the minor children is a sensitive issue and that the company of

the mother is a most natural thing for a child to grow up. 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.

Ms. Suruchi Kasliwal, the learned counsel argued that the minor child Pranav Sharma has been living in India continuously since August, 2013 for

more than five years. He is now resident of Ajmer in India. It is the courts in India, which have intimate contact with him as opposed to those in

Canada, where he merely spent ten months. The minor child Pranav suffers from chronic asthma. He needs to be nebulised whenever he gets

attacks, which can be even in the middle of the night. He also suffers from amblyopia, a disorder of sight caused due to the eyes and brain not

working well together, which requires regular attention. The respondent is a BDS degree holder and doing PG in microbiology from JLN Medical

College, Ajmer. She is better suited to look after the minor child Pranav Sharma. The parents of the respondent are also retired as doctors, who help

her in looking after the minor child Pranav. On the other hand, the petitioner whenever comes to India, lives alone. He also lives alone in USA. It is

also doubtful whether the petitioner has a job but even assuming that he has a job, it would be difficult for him to look after minor child Pranav even in

normal circumstances, what to say, to give medical treatment to him. Living the minor child Pranav with the petitioner could be life threatening to him.

The contention of the petitioner that the minor child Pranav, who is suffering from asthma, has been kept captive in desert and hazy town of Ajmer, is

wholly unfounded. The medical certificate annexed by the petitioner himself with the habeas corpus petition as Annexure-16 reveals that the minor

child Pranav had already developed the said medical ailment while in Arlington Illinois, North America. The minor child Pranav never attended a

school in USA or Canada, and was merely going to a Creche/playschool. He is now going to one of the best schools in Ajmer and has been doing very

well in his class Grade-3. He has had entire schooling in Ajmer and it might be not proper to disturb his studies. While on the one hand the petitioner is

seeking enforcement of the orders passed by the Canadian Court, on the other hand, he is presently not living in Canada but living in USA. It is

therefore that he now maintains that he wanted to take Pranav to USA and not to Canada. The settlement arrived at between the parties having

failed, the petitioner cannot be allowed to take the minor child Pranav or for that matter, the respondent, to USA as the Canadian Court’s order

does not require Master Pranav to be taken to USA.

Learned counsel submitted that the petitioner approached the courts in Canada for the custody of the minor child Pranav more than a year after he

left USA. Even thereafter he has approached the courts in India in May, 2015, almost two years after the respondent and minor child Pranav left the

USA. The petitioner has not paid a single penny to the respondent or minor child Pranav towards their maintenance, which shows that he is least

interested about their well being. In para 5 of the habeas corpus petition, the petitioner himself stated that he did not have enough money to buy an

apartment and that he tried to seek interviews with various governmental agencies and corporate entities in Ontario and continued to work for Pace

Suburban Bus Services at Chicago, which is 1100 miles away from Ancaster, where the respondent was forced to live with the sister of the petitioner.

It is stated in the said para that he used to visit the respondent and minor child Pranav only on the weekends and that too by driving as he could not

afford an air ticket, which clearly reveals that he was not financially sound to carter his duties like household, etc., toward his son and wife. The

learned counsel for the respondents argued that the principle of comity of courts is only one of the factors to be considered but the paramount

consideration of the court is always welfare of the child. Reference in this connection is made to the observations of the Supreme Court in para 39

and 42 of the judgment in Nithya Anand Raghavan, supra. It is argued that the contention of the petitioner that the petitioner altered his position based

on the settlement and he lost two years on this count, is completely misconceived. It is the petitioner who has violated the settlement by not performing

his part of the obligations and he cannot be permitted to benefit from his own wrong. The reference is also made to the email dated 29.04.2014 sent by

the petitioner to the respondent expressing his desire to take employment in Ajmer, for which he even forwarded the CV to the respondent, which

clearly proves that the petitioner was convinced that the minor child Pranav’s best interest lies in continuing him at Ajmer. The petitioner has been

working as the President of the Shastra Corporation dealing with military equipment, which operates both in USA as well as India. The learned

counsel for the respondent also referred to the judgment of the Supreme Court in Kanika Goel, supra, wherein, the Supreme Court has directed that

the custody of the minor girl child would remain with the mother until she attains the age of majority or the court of competent jurisdiction, trying the

issue of custody of the minor child, orders to the contrary, with visitation and access rights to the biological father whenever he would visit India. The

learned counsel for the respondent argued that as of now there are no proceedings pending in the Canadian Court. Moreover, the minor child Pranav

Sharma, who is aged about 10 years, has resided at Ajmer for last about almost six years and has developed the roots in India. The learned counsel

for the respondent, therefore, prayed that the habeas corpus petition be dismissed.

We have given our anxious consideration to rival submissions and perused the material on the record.

Indisputably, the respondent, as per own showing of the petitioner, removed the minor child Pranav Sharma from Ontario, Canada, to New York. She

then moved to New Jersey on 25.07.2013. The petitioner claims to have made repeated requests to the respondent to return to Chicago along with the

minor child Pranav, but she took a flight to India from New Jersey along with the minor child Pranav on 03.08.2013. The petitioner then visited India

twice in November, 2013 and April, 2014 to impress upon her to return back to USA or Canada along with the minor child Pranav but the respondent

did not agree. It is only thereafter that the petitioner moved the Superior Court of Justice, Family Court, Hamilton, Canada on 14.08.2018, by filing a

petition claiming the sole custody of the minor child. Evidently thus the petitioner claimed the sole custody of the minor child one year after the

respondent brought the minor child from New Jersey in USA to Ajmer in India. Subsequently the order was passed by the Superior Court of Justice,

Family Court, Hamilton, Ontario, Canada, on 28.10.2014 awarding sole custody of the minor child to the petitioner. The petitioner filed a motion on

17.03.2015 stating that the Ontario Court had jurisdiction to deal with the issue of custody in the matter of the minor child, whereas the respondent

sought order to the contrary. What therefore this court has to decide is whether despite the Ontario Family Court in Canada having by order dated

17.03.2015 holding that it is that court alone which has appropriate jurisdiction to determine the issue of custody relating to minor child Pranav Sharma

and the subsequent order of the said court on 02.04.2015 directing the respondent to produce the minor child Pranav Sharma to the territorial

jurisdiction of the said court and the final order the Superior Court of Justice, Family Court, Hamiloton, Ontario, on 16.04.2015 granting sole custody of

the Child to the petitioner, should this court by issue of a writ of habeas corpus hand over custody of the minor child to the petitioner and require the

respondent to move to jurisdiction of the courts at Canada or in USA along-with the child?

In Dr. V. Ravi Chandra, supra, also application for issuance of the writ of habeas corpus was filed by the father for production of his minor son from

the custody of his mother. That was also a case of male child born in US who was an American citizen by birth. He was removed by the mother from

the USA at the age of 8 years, in spite of the consent order covering the issue of custody and guardianship of the minor passed by the New York

Supreme Court. The minor was given in joint custody to the parents and restraint order was operating against the mother when the child was removed

from the USA and surreptitiously brought to India, where the minor had spent his initial years. All these factors went against the mother in that case

as can be seen from the discussion made in para 32 to 38 of the report. The Supreme Court therefore decided to exercise summary jurisdiction in the

interest of the child and directed the mother to return the child on her own to USA within the stipulated time. However, the Supreme Court while

directing both father and mother to return to USA to seek orders from the appropriate court in the USA where the matter was already pending, did

not entrust the custody of the child to the father as in its view, such course of action was in the best interest of the minor and was also in conformity

with the principle of Comity of Courts. This obviously was a case where the mother violated the consent order passed by the USA Court pursuant to

which the child was given in the joint custody of both parents. Dr. V. Ravi Chandra, supra is obviously distinguishable on facts because in that case

the mother surreptitiously brought the child to India violating the consent order passed by the USA Court pursuant to which the child was given in joint

custody of both parents and there was a restrain order operating against the mother. Such are not the facts of the present case. In the present case,

petitioner filed a petition before the Superior Court of Justice, Family Court Hamilton, Ontario on 14.8.2014 i.e. more than a year after the child was

brought to India by the respondent-mother on 3.8.2013, claiming sole custody of the minor child. The petitioner visited them in November, 2013 and

April, 2014. Orders were passed thereafter.

Shilpa Aggarwal Vs. Arvind Mittal â€" (2010) 1 SCC 591, another relied judgment, was rendered in a case where the petitioner-wife and the

respondent-husband were Indians, but had obtained the status of permanent residents in UK. The female child was born to them, who, according to

the petitioner-wife, acquired the status of permanent resident. Some matrimonial acrimony arose between the husband and the wife, which resulted in

the dispute between them regarding custody of the child, who was then three-and-a-half-year old. The petitioner-wife brought the child to India and

did not go back to UK along-with the child. The Court in UK held that the minor child would remain a ward of the court during her minority until

further orders and the petitioner-wife shall cause the minor to be returned to the jurisdiction of the English court. The respondent-husband filed writ

petition through his father in the Delhi High Court for direction that the custody of the minor child be handed over to him. The Delhi High Court

disposed of the writ petition giving fourteen days time to the petitioner-wife to take the child of her own to England and join the proceedings before the

court in England and Wales, failing which the child be handed over to the petitioner-husband to be taken to England as a measure of interim custody

and thereafter it was for the English courts to determine which parent would be best suited to have the custody of the child. The Delhi High Court

while passing the order took into consideration both the questions relating to comity of courts as well as interest of the minor child which is of

paramount consideration. While upholding the judgment of the Delhi High Court, the Supreme Court directed the respondent-father to provide for

initial expenses of the appellant-mother and of the minor child for travelling to and staying in the UK at least for a month to attend and contest

proceedings instituted by him before the English court.

In Surya Vadanan, supra, the Supreme Court held that the interim/interlocutory order for making child ward of court passed by foreign (UK) court of

competent jurisdiction first in point of time deserves due weight and respect, and that violation of such order by a parent should be viewed strictly as

that would be destructive of rule of law and principle of comity of courts, although mere violation thereof ought not to have penalising result. It was

held that there must be some special reason, like want of jurisdiction of foreign court, for disregarding such order. If foreign court has “most

intimate contact†and “closest concern†with the child and parents, because of their long residence and acquisition citizenship of that country

etc., that court would be most suitable for determining best interests and welfare of child, rather than domestic court if it lacks such contact and

concern. When the wife was not complying with the order passed by the foreign (UK) court, the husband filed writ petition in Madras High Court for

issuance of writ of habeas corpus on the ground that the wife had illegal custody of his two children and they may be produced before the court and

appropriate orders be passed. The High Court ruled that the custody of the children with the mother cannot be held to be illegal in any manner. In

appeal against the aforesaid judgment, the Supreme Court held that the principle of the “comity of courts†is essentially a principle of self-

restraint, applicable when a foreign court is seized of the issue of the custody of a child prior to the domestic court. It further held that there is

complete unanimity that the best interests and welfare of the child are of paramount importance. The ""most intimate contact"" doctrine and the ""closest

concern"" doctrine enunciated by the Supreme Court in Surinder Kaur Sandhu Vs. Harbax Singh Sandhu â€" (1984) 3 SCC 69,8 are very much alive

and cannot be ignored only because their application might be uncomfortable in certain situations. If the jurisdiction of the foreign court is not in doubt,

the “first strike†principle would be applicable, and due respect and weight must be given to substantive order prior in point of time to a

substantive order passed by another court.

In Arathi Bandi, supra, the parties were married in USA according to Hindu rites and were also settled there. Marital disturbances between them led

to filing of legal proceedings of divorce by husband and domestic violence complaint by wife in USA court. Custody of their child was given to wife

with visitation rights to husband and wife was restricted from taking child out of the country for more than five days. In contravention thereof, the wife

took the child to India and did not go back to USA. In the meantime, divorce decree was granted by the USA court. On habeas corpus petition filed

by the husband, the Andhra Pradesh High Court directed the wife to return the child to USA and to submit to jurisdiction of USA courts. The wife,

aggrieved thereby, filed an appeal before the Supreme Court, which interviewed both the husband and the wife to see if they were prepared to cohabit

again. The wife was willing to go back to USA and live with the husband. The husband, however, was not ready to cohabit with the wife again. In

those circumstances, the Supreme Court upheld the order of the Andhra Pradesh High Court with some modifications/additions to directions so given

by the High Court, following the ratio in V. Ravi Chandran, supra, and Surinder Kaur Sandhu, supra. In Surinder Kaur Sandhu, supra, the order was

passed by the court in England regarding custody of the minor child. The parents were Indian citizen but after marriage they settled in England. The

child became British citizen by birth. The father brought the child back to India. The mother obtained orders of English Court with direction to her

husband to deliver the custody of the child to her and on that basis, the mother filed writ petition in the Punjab & High Court for production and

custody of the child. The High Court held that the English Court having most intimate contact with the issue and jurisdiction over the matter, its order

would have binding effect upon the Indian court. The custody of the minor was given to the mother instead of the father, the natural guardian.

The role of a court in matters of a child has developed considerably from the concept of parens patriae which was a common law practice since

centuries in England mainly to safeguard the civil rights of a minor. The underlying principle was that if a child went astary, it was on account of

neglect of parents. In this situation, the courts assumes role of parents/guardian. It led to development of this theory internationally, which resulted in

the drafting of Convention on the Rights of the Child in the UN sometime in 1989 which India adopted on 02.09.1990. Therein the best interest of the

children was given the paramount importance in any proceedings concerning the children. We may in this connection, for facility of reference,

reproduce Articles 3, 6, 9, 10, 12, 16 and 18 of the aforesaid Convention as under:

“Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or

legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and

duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative

and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the

standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as

competent supervision.

Article 6

1. States Parties recognize that every child has the inherent right to life.

2. States Parties shall ensure to the maximum extent possible the survival and development of the child.

Article 9

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to

judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such

determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are

living separately and a decision must be made as to the child's place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings

and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with

both parents on a regular basis, except if it is contrary to the child's best interests.

4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including

death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request,

provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent

member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure

that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

Article 10

1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State

Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall

further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal

relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1,

States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The

right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security,

public order (order public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the

present Convention.

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting

the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child,

either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Article 16

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on

his or her honour and reputation.

2. The child has the right to the protection of the law against such interference or attacks.

Article 18

1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and

development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the

child. The best interests of the child will be their basic concern.

2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to

parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and

services for the care of children.

3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and

facilities for which they are eligible.â€​

Notwithstanding the law propounded by the Supreme Court in its earlier judgements in favour of the “principle of comity of courtsâ€, “the

principle of first strike†and the “most intimate contact†and the “closest concernâ€, there has been a definite shift in the approach of the

Supreme Court in the recent judgements of Nithya Anand Raghavan, supra and Kanika Goel, supra. We shall first deal with the judgement in Kanika

Goel, supra, in which the wife approached the Supreme Court challenging the judgment of the Delhi High Court which, on application of the husband,

directed her to return the minor daughter to the jurisdiction of the competent court in USA in compliance of the order passed by the Circuit Court of

Cook County, USA, before that court. The husband asserted that he was born in India but presently he was citizen of the USA since 2005. Before the

marriage, the parties entered into a prenuptial agreement dated 20.10.2010 enforceable in accordance with the laws of the State of Illinois, USA. They

first got married in India on 31.12.2010 as per Sikh rites, i.e. Anand Karaj ceremony, and Hindu Vedic rites in New Delhi with clear understanding

that the appellant, after marriage, would reside with respondent in the USA. Eventually the appellant travelled to the USA on a Fiance Visa and got

married to respondent again on 19.03.2011 at Cook County Court in Chicago, Illinois. The appellant then took employment as a teacher in Chicago

Public School and also secured a US Permanent Citizen Green Card. She gave birth to a girl child on 15.02.2014 in USA. The girl child was thus a

natural born US citizen and was domiciled in the State of Illinois, USA from her birth till she was clandestinely removed by the appellant in December,

2016 under the guise of undertaking a short trip to New Delhi to meet the appellant’s parents. The Delhi High Court after obtaining undertaking of

the husband to bear the travelling expenses of the wife and the girl child and arrange for their stay, fully furnished apartment, health insurance, food,

clothing and shelter etc., and deposit for that purpose an amount of 25000 USD as an estimated amount, directed the wife to return to USA along-with

the minor child within two weeks from the date of final judgment, failing which the minor child shall be handed over to the husband to be taken to the

USA. The mother assailed the aforesaid judgment of the High Court before the Supreme Court on the premise that the High Court has overlooked the

rudimentary principles governing the issue of invoking jurisdiction to issue a writ of habeas corpus in respect of a minor child, who was in lawful

custody of her mother. The High Court has misapplied the principles of paramount interest of the minor girl child of tender age of about 4 years. The

High Court has glossed over the doctrine of choice and dignity of the mother of a minor girld child keeping in mind the exposition in K.S. Puttaswamy

and Another Vs. Union of India and Others â€" (2017) 10 SCC 1. It has failed to consider that the intimate contact of the minor child would be her

mother, who was her primary care giver. The High Court has misapplied the principle expounded in Nithya Anand Raghavan, supra, and Prateek

Gupta Vs. Shilpi Gupta and Others â€" (2018) 2 SCC 309.

The Supreme Court in Kanika Goel, supra, after referring the ratio of the Nithya Anand Raghavan, supra, and Prateek Gupta, supra, in para 22 of the

report held that in view of these two decisions it was not open to contend that the custody of the female minor child with her biological mother would

be unlawful, for there is presumption to the contrary. It was held that the doctrine of “intimate and closest concern†are of persuasive relevance,

only when the child is uprooted from its native country and taken to a place to encounter alien environment, language, custom etc., with the portent of

multiplicative bearing on the process of its overall growth and grooming. On the totality of the facts and circumstances of the case, the Supreme Court

held that there was nothing to indicate that the native language (English) is not spoken or the child has been divorced from the social customs to which

she has been accustomed. Similarly, the minor child had just entered pre-school in the USA before she came to New Delhi along with her mother. In

that sense, there was no disruption of her education or being subjected to a foreign system of education likely to psychologically disturb her. On the

other hand, the minor child is under the due care of her mother and maternal grand- parents and other relatives since her arrival in New Delhi. If she

returns to US as per the relief claimed by the father, she would inevitably be under the care of a Nanny as the respondent-father will be away during

the day time for work and no one else from the family would be there at home to lookafter her. The Supreme Court held that the petition for

dissolution of the marriage having been filed in the Family Court, New Delhi, it is only appropriate that such proceedings are decided in the first place

including on the question of jurisdiction of the court and pending the outcome of the said proceedings, the parties will be free to pursue such remedies

as may be permissible under the law. Depending on the outcome of the proceedings before the Family Court at New Delhi, the mother may then

legally oblige to participate in the proceedings before the US court and must take all measures effectively defend herself in the said proceedings by

engaging solicitors of her choice in the USA and then the husband shall bear the cost of litigation and expenses to be incurred by the wife to pursue

the proceedings. He shall also be responsible to bear the air fares or purchase the tickets for the travel of the wife and the minor child to the USA

including their return journey for India. He shall also make all suitable arrangements for the comfortable stay of the wife and her companions at an

independent place of her choice at a reasonable cost. It may be significant to note at this stage that the aforesaid judgment was subsequently

corrected on an application and it was clarified that the court has wrongly noted that proceedings for custody of the child were pending before the

Family Court at New Delhi, which was factually incorrect. Those observations were, therefore, ordered to be deleted.

In Nithya Anand Raghavan, supra, too the minor child was removed from a foreign country by her biological mother. Till the minor child returned to

India along-with her mother, no proceedings of any nature came to be filed in UK courts either in relation to matrimonial dispute between the husband

and the wife or for the custody of the minor child. The father filed a writ of habeas corpus for production and custody of the minor child before the

Delhi High Court, which court held that the foreign court having the most intimate contact with the child would be better placed to appreciate the

social and cultural milieu in which the child had been brought up. The High Court held that the principle of comity of courts should not be discarded

except for special and compelling reasons, especially when interim or interlocutory orders have been passed by foreign courts, which should be given

due weightage and respect. If the jurisdiction of a foreign court is not in doubt, the “first strike†principle i.e. a substantive order passed by a

foreign court prior to a substantive order passed by another foreign or domestic court, becomes applicable. The High Court held that the child having

lived in the UK since the time of his birth, has developed the roots there and opined that in the light of the order by the UK Court, which had attained

finality due to lapse of time and since the mother had not sought the custody of the child by approaching Indian court prior to passing of the order

passed by the UK court, applying the principle expounded in Surya Vadanan Vs. State of Tamil Nadu and Others â€" (2015) 5 SCC 450, of comity of

courts, the balance of favour would lie with the UK Court. The UK Court passed an ex-parte order against the mother after recording its prima facie

satisfaction that the minor child was having habitual residence in the jurisdiction of the England and was wrongfully removed from there to be retained

in India. The High Court also rejected the contention of the mother that the girl child ought to be medically treated only in Delhi for her ailment with

which she was suffering and not in the UK, as baseless. In Nithya Anand Raghavan, supra both the parents were of Indian origin and that the minor

was Indian citizen by birth as she was born in India and after she had not given up her Indian citizen, she was granted US citizenship. The child was

admitted in the primary school in the UK and that she studied there till 02.07.2015 when she accompanied her mother to India. No proceedings of any

kind were initiated or filed for her custody. The Supreme Court reversing the judgment of the High Court held that the India is not yet a signatory to

Hague Convention of 1980 on Civil Aspects of International Child Abduction. So far as non-Convention countries are concerned, the law is that the

court in the country to which the child is removed while considering the question must bear in mind the welfare of the child as of paramount

importance and consider the order of the foreign court as only a factor to be taken into consideration.

The Supreme Court in Nithya Anand Raghavan, supra, in para 42 of the report held that if the child has been brought within India, the Courts in India

may conduct (a) summary inquiry or (b) an elaborate inquiry, on the question of custody. In the case of a summary inquiry, the Court may deem it fit

to order return of the child to the country from where he/she was removed unless such return is shown to be harmful to the child. It was then held that

even in the matter of a summary inquiry, it is open to the Court to decline the relief of return of the child to the country from where he/she was

removed irrespective of a pre-existing order of return of the child by a foreign Court. In an elaborate inquiry, the Court is obliged to examine the

merits as to where the paramount interests and welfare of the child lay and reckon the fact of a pre- existing order of the foreign Court for return of

the child as only one of the circumstances. In exceptional cases, the Court can 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. The Supreme Court further held that while examining the issue the Courts in India are free to decline

the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose

the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return.

It was held that the principle of comity of courts cannot be given primacy or more weightage for deciding the matter of custody or for return of the

child to the native state. The Supreme Court therein further held that it is also not relevant as to which party first approached the court. The invocation

of first strike principle as a decisive factor would undermine and whittle down the wholesome principle of the duty of the Court having jurisdiction to

consider the best interests and welfare of the child, which is of paramount importance, held the Supreme Court. If the Court is convinced in that

regard, the fact that there is already an order passed by a foreign Court in existence may not be so significant as it must yield to the welfare of the

child. It was held that the principle underlying Section 10 of the Code of Civil Procedure, especially the one contained in the explanation thereto,

provides that the pendency of a suit in a Foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action,

can be invoked in such a situation.

In Nithya Anand Raghavan, supra, the Supreme Court declined to issue the writ of habeas corpus by observing that such remedy cannot be used for

mere enforcement of the direction given by the foreign court against person within the jurisdiction of domestic court so as to convert the jurisdiction of

such court to that of executing court and that the custody of a minor child with his biological mother is lawful, instead the other parent can be asked to

resort to a substantive prescribed remedy for getting the custody of the child. The observation made by the Supreme Court in paras 46 and 47 are

reproduced hereunder:

“46. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx The order of the foreign Court must yield to the welfare of the child. Further, the

remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its

jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may

be permissible in law for enforcement of the order passed by the foreign Court or to resort to any other proceedings as may be permissible in law

before the Indian Court for the custody of the child, if so advised.

47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of

another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that

the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be

presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl

child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of

writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child.â€​

In Thomson v. Thomson, (1994) 3 SCR 551, the Supreme Court of Canada while dealing with the issue as to what should be the magnitude of

physical, moral or cultural harm, which may justify refusal of the order of return of the child to his or her ‘habitual residence’, explained that

harm must be “to a degree that also amounts to intolerable situationâ€. It must be a “weighty†risk of “substantial†psychological harm.

“Something greater than that would normally be expected ton taking a child away from one parent and passing him to another.“

In the matter of S (a Child), (2012) UKSC 10, the UK Supreme Court referred to its own judgment in Re E (Children) (Abduction: Custody Appeal),

(2011) UKSC 27, and observed that a defence under Article 13 (b) of the Hague Convention, 1980 could be founded upon the anxieties of a parent

about a return with the child to the state of ‘habitual residence’, which were not based upon objective risk to her, but nevertheless of such

intensity as to be likely to destabilise the parenting of that child to the point at which the child’s situation would become intolerable.

The United State Supreme Court in Lozano v. Montoya Alvarez, 34 S.Ct. 1224 (2014), a Hague Convention, 1980, case in US, relating to domestic

violence, recognized the impact of domestic violence on the child, observing:

“return of the child may be refused if doing so would contravene fundamental principles …… relating to the protection of human rights and

fundamental freedom.â€​

In re: McGrath (Infants), [1893] a Ch 143 Lindley LJ said:

“The dominant matter for the consideration of the Court is the welfare of the child. But 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.â€​

`Welfare of the Child’ was determinative criterion back then in 1893 and continue to be so is relevant even a century later. It has found place in

various Indian judicial pronouncements. The Courts have been referring to the Convention on the Rights of the Child, 1989 and emphasized the

importance of the principle of best interests of the child in Laxmi Kant Pandey v. Union of India, AIR 1984 SC 469;G aurav Jain v. Union of India,

AIR 1997 SC 2021; and Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413.

The Supreme Court in Union of India vs. Yumnam Anand-(2007) 10 SCC 190, explaining the nature of writ of habeas corpus observed in para 7 of

the report as under:

“7. Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure

established by law, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus

is a device of this nature. Blackstone called it ""the great and efficacious writ in all manner of illegal confinement"". The writ has been described as a

writ of right which is grantable ex dobito justitae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his

unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to this writ as of right.â€​

Law has thus amply developed that despite pre-existing order of the return of the child by the Foreign Court, the High Court may decline relief for the

return of the child to the country from which he/she was removed. In exceptional cases, the Court can refuse to issue a direction to return of the child

if in the opinion of the court, it may expose him to a grave risk of harm. The Courts are consistent in their approach that such issue should be

considered 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.†While examining the issue, the Court in India are free to decline the relief of return of the

child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or

psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return.

The Supreme Court in R.V. Srinath Prasad, supra held that before a change is made in the matter of custody of a minor child from one parent to

another, it must be proved to be in the paramount interest of the child. However, neither affluence, nor capacity to provide comfortable living should

cloud the consideration by the Court in the matter of custody of minor children. Albeit in the context of a female child, the Supreme Court in Vivek

Singh vs. Romani Singh-(2017) 3 SCC 231 has highlighted the role of the mother regarding care and upbringing of the child in the following terms:

“17(1) 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 lover, 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.â€​

Master Pranav, the child for whose custody the parties are in dispute was merely 4 years old when he was brought to Ajmer in India by his mother on

3.8.2013. Since then he has been residing at Ajmer for more than five and a half years. He is a regular student of Class-III at Sanskar School, Ajmer.

Even if he has attended the Montessori school in Canada for few months, the fact is that he has after completion of the Nursery Class entered IIIrd

Standard and now developed friendly relations with his classmates, mother and maternal grand parents and other neighbours. He has become

accustomed to the milieu in Ajmer, which has now become his habitual residence. No proceedings of any nature came to be filed in the courts at

Canada or even USA either in relation to matrimonial dispute between the petitioner and the respondent or regarding the custody of the minor child

Pranav Sharma till the respondent was there. Master Pranav is suffering from chronic asthmatic ailment and amblyopia, requiring constant care. The

respondent, mother of the minor child, having medical background being a BDS degree holder. She is doing PG in microbiology from JLN Medical

College, Ajmer, and her parents being the doctors. Directing the removal of the minor child Pranav Sharma from their custody to be handed over to

the petitioner, in the totality of the facts of the case, would not be in the welfare of the child and would rather be harmful to him both physically and

psychologically, particularly when he suffers from the disease chronic asthma and amblyopia, a disorder of sight caused due to the eyes and brain not

working well together. If now he is forced to go back to Canada in the sole care of his father, is likely to psychologically disturb him, particularly when

he will be required to now adapt to an education system of that country. This would adversely affect his over all growth and grooming as in the

absence of his mother, his father being a busy professional, he is not likely to remain under the care of a Nanny.

True it is that the Superior Court of Justice, Family Court, Hamilton, Ontario, Canada, on 28.10.2014 awarded sole custody of the minor child to the

petitioner and the objection as to jurisdiction over the issue raised by the respondent through his counsel has been rejected by that Court on 16.04.2015,

the fact however also remains that while there is now no case pending in any Court pending there in Canada, there are two court cases pending in the

courts at Ajmer filed by the respondent against the petitioner. The respondent has filed a petition under Section 25 of the Guardians and Wards Act,

1890 at the Family Court, Ajmer on 14.10.2004. The petitioner therein had raised objection as to the maintainability of the said petition, which is still

pending.

Moreover, the respondent has also filed a suit invoking Section 13 of CPC praying for a declaration that the order of the Foreign Court is not

enforceable in India. We are not commenting on the merits of either of the two cases. But taking totality of the circumstances into consideration, this

Court is not inclined to issue a writ of habeas corpus to force repatriation of the child by not letting the mother exhaust the remedies available to her in

the Indian Judicial System, which it goes without saying, can always been contested by the petitioner. Moreover, this Court cannot loose sight of the

fact that petitioner has not removed the child either from Canada or from USA violating any restraint order passed by any Foreign Court. Mere fact

that parties entered into as settlement and then having complied some of the terms thereof, started blaming each other for violating the terms of the

settlement, cannot be considered as a penalising circumstance against either of the parties including the mother while deciding the present habeas

corpus petition. Even though this Court is not inclined to issue the writ of habeas corpus, it must be observed that it is always open to the petitioner to

get the order of the Canadian Courts enforced through any other means than the habeas corpus petition. It goes without saying that the respondent

can also take her remedy against the order/s of the Canadian Court/s either by herself or through her attorney in the justice system of that country.

This Court is conscious of the fact that the Supreme Court in its judgement while setting aside the order of this Court passed in contempt petition dated

09.01.2018, left it open to the petitioner to press the contempt petition again before this Court for its decision afresh, keeping in view the fact whether

the respondent was correct in her statement that it is the petitioner who did not take necessary steps to ensure that she joins his company. But at the

same time, it is also a fact that the Supreme Court set aside that part of the same judgement vide which D.B. Civil Misc. Appl. No.684/2017 was

dismissed, in which application respondent prayed for revival of the habeas corpus to decide it afresh on merits (in the judgement, it has been referred

to as the application filed by the petitioner-father). In fact, the respondent was not alone in praying for revival of habeas corpus petition, the petitioner

himself filed D.B. Civil Misc. Appl. No.505/2017 seeking revival of the habeas corpus petition after the settlement between the parties failed. But he

withdrew the same on the basis of observation made by this Court that in case of any breach or disobedience of the order on part of non-application,

there is alternative remedy available to him to initiate contempt petition against the respondent. The division bench of this Court by order dated

05.10.2017 dismissed his application as withdrawn with liberty to file contempt petition. In any case, both the parties wanted the revival of the habeas

corpus petition following frustration of the settlement.

While in the contempt petition, the petitioner has levelled several allegations against the respondent and has alleged that the respondent deliberately

violated the terms of the settlement, but the respondent has also in reply thereto made counter allegations against him. The petitioner has alleged in the

contempt petition that respondent intentionally did not act in consonance with the terms and conditions as agreed to in the consent order dated

17.12.2015 as she never withdrew any of the cases pending adjudication in the Family Court, Ajmer and did not consent for quashing of the FIR

pending in the Police Station Mahila Thana, Ajmer. She refused to accompany the petitioner with the minor child to USA even though the petitioner

travelled to Ajmer for this purpose. The respondent refuted all these allegations and asserted in reply to the contempt petition that until and unless the

orders dated 2.4.2015 and 16.4.2015 passed at the instance of the petitioner were recalled by the Superior Court of Justice, Family Court, Hamilton,

Ontario, she had reasonable apprehension of cheating by the petitioner upon her landing in USA. The petitioner never produced certified copies of the

orders substantiating withdrawal thereof. Petitioner has produced the copy of the order dated 22.1.2016 passed by United States District Court

showing withdrawal of the arrest warrant issued against the respondent, but neither was it certified copy, nor was duly attested to be true and correct

by the US Embassy. The respondent had apprehension that the moment she entered US, she could be arrested. Moreover, despite specific condition in

the order of this Court dated 17.12.2015, the petitioner did not identify even a single flat, as against three to four, for being chosen by the petitioner,

which was the purpose of her travel to USA. Since the occasion did not arise, she could not have travelled to USA. When the petitioner for the first

time visited Ajmer, while he permitted Master Pranav to enter his hotel room, but he refused to allow entry to the respondent.

Unfortunately, despite the parties having agreed to settle terms and conditions before the Mediation Centre, mistrust between the parties persisted and

the settlement arrived at between them was the casualty thereof. On consideration of the allegations and counter allegations both, this Court is not

inclined to hold the respondent-mother alone guilty of willful and deliberate disobedience of the settlement order. Moreover, we do not want to dwell

much upon the merits of the assertions made by either of the parties as, in our considered opinion, once when the habeas corpus petition has been

revived, the order of settlement dated 17.12.2015 has lost its efficacy for all purposes and in any case, the respondent cannot be punished for

contempt thereof. We therefore do not find any justification in holding the respondent guilty of willful and deliberate disobedience of the settlement

arrived at before the Mediation Centre attached to this Court.

In the light of the view that we have taken of the matter, the habeas corpus petition and the contempt petition are both liable to be dismissed and we

do so. While dismissing both the petitions, however, we deem it appropriate to make following directions in the welfare of the child:

1) that the petitioner shall be entitled to meet his son Master Pranav Sharma on any particular day once in a block of every three months at Ajmer as

per the date, time, duration and venue that may be decided by the Family Court, Ajmer on his application;

2) that the petitioner shall be entitled to have video conferencing with his son Master Pranav once in every fortnight i.e. on 2nd and 4th Sunday of

every month on skype, imo or whatsapp or any other internet platform, for a maximum of half an hour on each occasion, between 6.00 pm and 9.00

pm (IST), for which petitioner would provide a MacBook and an internet connectivity dongle with minimum monthly value/charge of Rs.1,000 to

Master Pranav. The respondent-Meenal Bhargava shall abide by this order and not create any obstruction in the conversation by this mode between

father and son;

3) that the minor child Master Pranav, who is presently 10 years old, on attaining the age of majority, would be entitled to make a choice in favour of

acquiring Indian citizenship or retaining US citizenship. In the latter event, he shall be entitled to move to that country as per the arrangements made

by the petitioner;

4) that till such time Master Pranav does not attain the majority, he shall be allowed to stay in India with his mother and no government authority, State

or Central, shall create any kind of hindrance thereabout;

5) that direction nos.1 to 4, supra shall always remain subservient to any mutual settlement that may be arrived at between the petitioner and the

respondent at any time in future, before Master Pranav attains majority, in which case, his own wish shall prevail.

The habeas corpus petition and the contempt petition are both disposed of accordingly with no order as to costs.