IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2357 OF 2009

(Arising out of S.L.P.(Crl.)NO.5995 of 2009)

Mrs. Shilpa Aggarwal … Appellant

Vs.

Mr. Aviral Mittal & Anr. … Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. The question which we are called upon to decide in

this case is whether a 3½ year old girl child, who was

born in England of Indian parents and is a British

citizen by birth, can be kept in the custody of the

mother who is now currently residing in India, despite

an order passed on 26

th

November, 2008, by the High

Court of Justice, Family Division, U.K., directing that

the child be returned to the jurisdiction of the Courts

of England and Wales.

3. This is one of those cases where a minor child

below 4 years of age is the victim of the acrimony of

the two adults who were responsible for her birth. The

appellant was married to the Respondent No.1 herein on

4

th

November, 2003, and as the Respondent No.1 was

already working in the United Kingdom since November,

2000, the parties set up their matrimonial home first

in Scotland and then in England. A girl child, who is

now 3½ years of age, was born of the said marriage.

The appellant herein also obtained employment in U.K.

and both the Respondent No.1 and the appellant acquired

the status of permanent residents of U.K. in 2004 prior

to the birth of the child on 20

th

February, 2006. Being

born in the United Kingdom, the child acquired British

citizenship and was the holder of a British passport,

although, her parents continued to hold Indian

passports.

4. Soon after the birth of the child, some

disagreements seem to have developed between the couple

but, in any event, the appellant along with the minor

child came to India on 12

th

September, 2008. The

Respondent No.1 also came to India on 10

th

October,

2008, and returned to the United Kingdom on 14

th

October, 2008. According to the Respondent No.1, the

appellant herein was supposed to join him in his family

house at New Delhi once he arrived in India, but it is

his case that she chose not to do so. According to the

Respondent No.1, the appellant and the minor child were

supposed to leave for U.K. on 9

th

November, 2008, but

the appellant got their tickets cancelled on 7

th

November, 2008, and remained behind in India. The

Respondent No.1 thereupon started proceedings before

the High Court of Justice, Family Division, U.K., on

25

th

November, 2008, praying for an order that the minor

child be made a ward of the Court and for a direction

upon the appellant to return the minor child to the

jurisdiction of the said Court. On such ex-parte

application, the High Court of Justice, Family

Division, U.K., on 26

th

November, 2009, directed the

appellant herein by an ex-parte order to return the

minor child, Ms. Elina, to the jurisdiction of the said

Court. A further direction was given for the passport

and other international travel documents of the minor

child to be handed over to the Solicitors of the

Respondent No.1 within 72 hours of the return of the

child and the same were not to be released to either

party without the permission of the High Court.

5. According to the Respondent No.1, since the

parties had set up their matrimonial home in Scotland,

and, thereafter, in England, they were subject to the

jurisdiction of the Courts in U.K. since 2003. In

addition, the parties had worked for gain in U.K. and

the minor child was also holding a British passport

with the parents having acquired permanent resident

status in U.K. It was thus the case of the Respondent

No.1 that the status of the minor child in India was

that of an “illegal migrant” in view of the directions

passed by the English Courts and the child should be

returned to that jurisdiction.

6. According to the appellant, the proceedings in the

United Kingdom were taken behind her back and it is

only on 1

st

December, 2008, that she received a copy of

the proceedings filed before the High Court of Justice,

Family Division, U.K. Immediately thereafter, on 4

th

December, 2008, Writ Petition (Crl.) No.1553 of 2008

was filed by Mr. Shanti Bhushan (father of the

Respondent No.l), allegedly on the strength of a

Special Power of Attorney executed by the Respondent

No.1 in his favour, seeking protection of the minor

child before the Delhi High Court and for a direction

that custody of the minor child be handed over to him.

Notice was issued on the said writ petition and on 16

th

December, 2008, the appellant was represented before

the Delhi High Court through her learned counsel.

Incidentally, it may be indicated that 15

th

December,

2008, was also said to have been fixed by the High

Court in U.K. for hearing of the petition filed by the

Respondent No.1 and also for the appearance of the

appellant herein.

7. On 7

th

January, 2009, the Delhi High Court

directed both the parties to appear before the Delhi

High Court Mediation Centre on 9

th

January, 2009, to

explore the possibility of a settlement and also gave

visitation rights to the Respondent No.1 to see his

minor daughter. It further appears that on 17

th

January, 2009, the minor child was admitted to Apeejay

School, Pitampura, Delhi, and the appellant was

appointed as the Computer Coordinator on 20

th

January,

2009 in the said school. It appears that the mediation

proceedings took place between the parties on 25

th

February, 2009, but there was no positive outcome and,

on the other hand, it is the appellant’s case that

while surfing through her Orkut Profile on 27

th

April,

2009, she came to learn that the Respondent No.1 was

claiming to be “single” as if his marriage with the

appellant was not subsisting.

8. On 7

th

August, 2009, the Delhi High Court disposed

of the writ petition filed by the father of the

Respondent No.1 (Writ Petition (Crl.) No.1553 of 2008)

by passing the following order :-

“At the first instance, a period of 14 days be granted

to Respondent No.2 (Petitioner herein) to take the

child of her own to England and join the proceedings

before the Courts of England and Wales, failing which

the child be handed over to the petitioner to be taken

to England as a measure of interim custody and

thereafter it is for the courts of England and Wales to

determine which parent would be best suited to have the

custody of the child.”

The present appeal has been filed challenging the

said order of the High Court.

1.Appearing for the appellant, Mr. Pallav

Shishodia, learned Senior Advocate, submitted

that while passing the impugned order, the Delhi

High Court appears to have lost sight of the fact

that the interest of the minor is of paramount

importance in matters relating to custody and

particularly in this case where the minor was a

girl child and was just about 3½ years old. The

learned counsel also submitted that the

proceedings taken in the United Kingdom had been

taken behind the back of the appellant, without

notice to her, despite the fact that both she and

child were in India where the child had already

been admitted in a school and was being properly

cared for and looked after by the appellant. Mr.

Shishodia submitted that in the interest of the

minor child, the Delhi High Court ought not to

have given such directions which had the effect

of the minor child having to be handed over to

the custody of her paternal grandparents who had

not even maintained any contact with the child.

10.Mr. Shishodia urged that having regard to the

provisions of Section 6 of the Hindu Minority and

Guardianship Act, 1956, whereunder the mother is

entitled to retain custody of the minor child under the

age of 5 years, the High Court erred in directing the

appellant to submit herself and her minor daughter, who

were both Hindus, to the jurisdiction of a foreign

court in terms of an interim order passed in

proceedings taken before the said court for the purpose

of deciding the question of custody. He also

questioned the jurisdiction of the High Court to issue

a writ in the nature of mandamus to a private

individual to submit to the jurisdiction of a foreign

court in a habeas corpus proceeding.

11.Mr. Shishodia submitted that an almost similar

question had been considered and decided by this Court

in Sarita Sharma vs. Sushil Sharma (2003 (3) SCC 14],

wherein it was held that even a decree passed by a

foreign court could not override the consideration

relating to the welfare of the minor child. It was

held that what was of paramount importance was the

interest of the minor child, a principle which is

universally recognized and accepted. It was submitted

that in the aforesaid decision this Court had also

observed that all the technicalities involving

jurisdiction and Comity of Courts would have to give

way to the issue involving the welfare of the minor.

Everything else pales into significance in deciding the

matter of custody of a minor child and especially a

minor child below the age of 5 years.

12.Mr. Shishodia contended that the High Court had

erroneously relied upon the judgment of this Court in

Mrs. Surinder Kaur Sandhu vs. Harbax Singh Sandhu &

Anr. [(1984)3 SCC 698] which was based on the principle

of Comity of Courts, which had been taken note of in

Sarita Sharma’s case (supra).

13.A further submission was made to the effect that

the High Court had erred in holding that although the

custody of the minor child with the mother was not

illegal at the inception, it became so after the

directions given by the High Court of Justice, Family

Division, U.K., on 26

th

November, 2008, to return the

child to its jurisdiction within 14 days, failing which

the appellant herein would be guilty of contempt of

court and could also be sent to prison, fined or her

assets could be seized. It was contended that the High

Court ought not to have ousted its own jurisdiction as

well as the jurisdiction of the Indian courts to decide

the question of custody of the minor child in

accordance with the law of the land where the minor

child is currently resident, particularly in the

absence of any allegation of kidnapping or of bringing

the minor into India in breach of any foreign decree or

injunction. Yet another question which was raised was

with regard to the psychological damage that could be

caused on an impressionable mind which could ultimately

destroy the mental orientation and moral fabric of a

minor child.

14.Mr. Shishodia laid special stress on the decision

of this Court in Sarita Sharma’s case (supra), in which

the question of custody of children in almost similar

circumstances came up for consideration. In the said

case an American Court had put the children born out of

the marriage in the care of the respondent-husband, but

in exercising visitation rights, the appellant-wife

picked up the children from her husband’s residence and

brought them to India despite the American Court’s

order. A writ petition for issuance of a writ in the

nature of habeas corpus was filed by the husband in the

Delhi High Court and having regard to the conduct of

the appellant-mother, the High Court directed her to

hand over the custody of the children to her husband

and permit him to take them to the U.S.A. The said

order being challenged in the Supreme Court, this Court

held that although the appellant’s conduct of removing

the children from the U.S.A. was a relevant fact, it

could not override the various aspects relating to the

welfare of the children. This Court thereupon held

that the High Court had erred in restoring the custody

of the children to the husband on the sole ground of

breach of the order of the American Court and that the

High Court should have directed the respondent-husband

to initiate proceedings for holding a full-fledged

inquiry as to what would be in the interest of the

children having regard to the provisions of Section 6

of the Hindu Minority and Guardianship Act, 1956.

15.Mr. Shishodia urged that even in the said case the

question of lawful custody of the children cropped up.

This Court observed that before she came to India with

the children, the appellant-wife was in lawful custody

of the children. The question which had to be answered

was whether custody became illegal as she had committed

breach of the order of the American Courts directing

her not to remove the children from the jurisdiction of

that court without its permission. In the said case,

in a decree of divorce an order of the custody of

children had already been passed, and the same was a

further consideration for deciding the question as to

whether the custody of the children became illegal

thereafter. Mr. Shishodia pointed out that, as

indicated hereinbefore, Surinder Kaur’s case (supra)

had been considered in Sarita Sharma’s case (supra),

where a distinction having been made on the ground of

the welfare of the minor child being paramount, this

Court held that the interest of the minor child would

be best served in allowing the mother to retain custody

of the said children, notwithstanding the orders passed

by the American Courts. The writ petition filed by the

respondent-husband was, accordingly, dismissed by the

Appeal Court on the basis of the circumstances relating

to the welfare of the minor.

16.To further strengthen his submissions, Mr.

Shishodia also referred to the decision of this Court

in (i) Rajesh K. Gupta vs. Ram Gopal Agarwala & Ors.

[(2005) 5 SCC 359]; and (ii) Dhanwanti Joshi vs. Madhav

Unde [(1998) 1 SCC 112]. In Rajesh K. Gupta’s case

(supra) in relation to a matrimonial and child custody

dispute the husband, an Advocate-on-Record practising

in the Supreme Court, filed a writ petition for a writ

in the nature of habeas corpus for custody of his minor

daughter. There also this Court held that in an

application for a writ of habeas corpus for custody of

a minor child the principal consideration for the court

would be to ascertain whether the custody of the child

can be said to be lawful or illegal and whether the

welfare of the child required that the child should be

left in the care and custody of someone else. It was

also noted that in case of disputes between the mother

and father regarding the custody of their child, the

paramount consideration is the welfare of the child and

not the legal right of either of the parties. Mr.

Shishodia submitted that notwithstanding the

allegations regarding the wife’s mental condition, the

court thought it fit to allow her to remain in custody

of the minor child.

17.In the other decision in Dhanwanti Joshi’s case

(supra), the claim of the father for custody of the

child on the ground of his having superior financial

capacity to give his child immediate American

education, was negated and it was held that having

superior financial capacity cannot be the sole

consideration for change of custody from mother to

father. This Court held that while the child in his

mother’s custody was getting good education and doing

well in studies, the proposal of an immediate American

education, which the father was prepared to finance,

could not be a sufficient ground for shifting the child

to the father’s custody. It was also observed that the

child, who was a citizen of U.S.A. by birth, could go

to U.S.A. in his own right in future, whenever it was

so decided.

18.Mr. Shishodia submitted that the reasoning of the

High Court based solely on the doctrine of the Comity

of Courts, without giving proper importance to the

welfare of the minor, could not be sustained and was

required to be set aside.

19.On the other hand, Mr. Debal Banerjee, learned

Senior Advocate, appearing for the Respondent No.1,

contended that the decision of the High Court to apply

the principle of the Comity of Courts was wholly

justified, inasmuch as, there was an existence of an

order, even if interim in nature, directing the

appellant within a period of 14 days to voluntarily

take the child to England and to join the proceedings

before the Court of England and Wales, failing which

the child was to be handed over to the respondent to

be taken to England as a measure of interim custody,

and, thereafter, it would be for the Courts of England

and Wales to determine which of the parents would be

best suited to the custody of the child.

20.Mr. Banerjee submitted that although in Sarita

Sharma’s case (supra) the decision in Surinder Kaur’s

case was noticed and a passage from the said judgment

was also extracted, in the ultimate analysis the Court

felt that the minor children should be handed over to

the mother as it would be in the best interest of the

children to be with the mother since they too expressed

the desire to stay with her. Mr. Banerjee submitted

that in the said case also the Court had to resort to a

chance that the dispute would ultimately be settled

and, on such consideration, the writ petition filed by

the respondent-husband was dismissed.

21.Reliance was also placed on the oft-repeated

decision of this Court in the case of Mrs. Elizabeth

Dinshaw vs. Arvand M. Dinshaw & Anr.

[(1987) 1 SCC 42]. The facts of the said case have a

good deal of similarity with the facts of the instance

case, where also, in view of the father secretly

bringing the child to India against the express orders

of the American Court, the mother filed a habeas corpus

petition before the Supreme Court for restoration of

the child’s custody. In the background of the said

facts, this Court held that the mother was entitled to

the child’s custody, with liberty to take the child to

the U.S.A. and the father could pursue the matter

before the U.S. Court for restoration of the visitation

rights which had earlier been granted in his favour.

22.Mr. Banerjee contended that when there was an

existing order of a foreign court, the prayer for

deciding the matter for the same relief ought not to be

granted. The learned counsel submitted that there was

no ground whatsoever, for this Court to interfere with

the order of the High Court which had been passed in

the interest of the minor girl child.

·From the materials disclosed in this case,

we find ourselves placed between two

contrasting principles of law which we are

required to balance keeping in mind the

interests of a minor 3½ year old girl child.

Of the two principles, the High Court has

placed greater reliance upon the theory of

Comity of Nations and Comity of Judgments of

the Courts of two different countries in

deciding the matter. Having held that the

High Court of Justice, Family Division,

U.K., was already in seisin of the matter

and had passed an interim order of restraint

and having further regard to the fact that

the interests of a 3½ year old minor girl

child was involved, the Delhi High Court

directed that the custody of the child be

made over to the father in England and in

the alternative to the grand-parents in

India who would return the child to the

jurisdiction of the U.K. Courts. Even while

considering the interests of the minor

child, the High Court felt that due respect

had to be given to the orders of the U.K.

Court as the U.K. Court was closest to the

issue involving the custody of the minor

child who was a British citizen.

24.There is yet another aspect of the matter on which

the High Court has stressed. The High Court has

noticed the fact that both the appellant wife and the

respondent husband had set up their matrimonial home in

Scotland and thereafter in England since 2003. Both

the parents had been working for gain in the U.K. and

while the minor child was holding a British Passport,

the parents had acquired permanent resident status in

the U.K.

25.It is not as if the High Court was oblivious of

the fact that it was the paramount duty of the Court to

look after the interests of the minor child. It has

referred to the celebrated decision of this Court in

Elizabeth Dinshaw’s case (supra), wherein it was

emphasized that in matters of custody of minor

children, the sole and predominant criterion is the

interest and welfare of the minor. Further, while

relying upon the judgment in Sarita Sharma’s case

(supra), the High Court did consider the decision in

Surinder Kaur’s case (supra), where the facts were very

similar. Yet, the High Court, relying on the decision

of this Court in Sarita Sharma’s case (supra) came to

the conclusion that the Courts in this country cannot

be guided entirely by the fact that one of the parents

had violated the order passed by a competent foreign

Court. Choosing to rely on the doctrine of Comity of

Courts, the High Court directed the appellant to return

the minor child to the jurisdiction of the U.K. Court

as the said Court was closest to the issue involving

the custody of the child and would thoroughly examine

the claim of the appellant and the Respondent No.1 to

be entrusted with the custody of the child.

26.Although, Mr. Shishodia relied heavily on the

decision in Surinder Kaur’s case, it cannot be ignored

that the said case has duly considered the principle

that the interest of the minor is paramount in any

decision relating to custody. It is but natural that in

a matrimonial tussle both the parents would want the

custody of the minor child. In this tussle, we have to

decide who would be more suited to have custody of the

child. In our view, the High Court appears to have

taken the correct approach in a matter like this.

Although, on first impression, it would appear that the

interests of the minor child would best be served if

she is allowed to remain with the appellant, we cannot

lose sight of the order dated 26

th

November, 2008,

passed by the High Court of Justice, Family Division,

U.K., which admittedly is an ex-parte order and, inter

alia, reads as follows :-

“IT IS ORDERED THAT :-

1.The minor, Elina Mittal (date of birth 20

th

February, 2006), shall remain a ward of court

during her minority or until further order,

2.The Defendant mother, Shilpa Agarwal, do within 14

days of service of this order upon her cause the

said minor to be returned to the jurisdiction of

England and Wales,

3.Following the return of the said minor to England

and Wales, the Defendant mother shall thereafter be

forbidden (whether by herself or by instructing or

encouraging any other person) from causing or

permitting the minor to be removed from the

jurisdiction of England and Wales without the

permission of a High Court judge.

4.Within 72 hours of the return of the said minor to

England and Wales, the Defendant mother must

deliver up to the Plaintiff father’s solicitors,

Messrs Lyons Davidson of Victoria House, 51

Victoria Street, Bristol BS1 6AD all passports and

international travel documents for the child on the

basis that those documents will be held by that

firm to the order of the court and will not be

released to either party without the permission of

a High Court Judge;

5.Within 72 hours of the return of the said minor to

England and Wales, the Defendant mother must

provide the Plaintiff father’s solicitors, Messrs

Lyons Davidson of Victoria House, 51 Victoria

Street, Bristol BS1 6AD with full details in

writing of any address at which she intends to

reside with the child and a contact telephone

number for herself; she must also provide to the

father’s solicitors in writing full details of any

new address to which she intends to move with the

child prior to such move taking place.

6.There be liberty to the Defendant mother to apply

to vary or discharge any provision of this order

upon giving 24 hours’ notice to the Plaintiff

father’s solicitors, Messrs Lyons Davidson of

Victoria House, 51 Victoria Street, Bristol BS1 6AD

(of PMM/CLP; telephone number 01179046000); any

such application shall be supported by a sworn

affidavit.

7.The application shall be adjourned and listed at

risk for further directions before a High Court

Judge sitting at the Royal Courts of Justice,

Strand London at 10.30 am on 15 December 2009 (time

estimate ½ hour).

8.The costs of this application be reserved:

AND NOW THEREFORE this Court respectfully invites all

judicial and administrative bodies in the Republic of

India to render assistance in ensuring that the minor

Elina Mittal is returned as soon as possible to the

jurisdiction of England and Wales.”

27.It is evident from the aforesaid order that except

for insisting that the minor be returned to its

jurisdiction, the English Court did not intend to

separate the child from the appellant until a final

decision was taken with regard to the custody of the

child. The ultimate decision in that regard has to be

left to the English Courts having regard to the

nationality of the child and the fact that both the

parents had worked for gain in the U.K. and had also

acquired permanent resident status in the U.K. The

High Court has taken note of the fact that the English

Court has not directed that the custody of the child

should be handed over to the respondent father but that

the child should be returned to the jurisdiction of the

Courts in the U.K. which would then proceed to

determine as to who would be best suited to have the

custody of the child. In our view, the approach of the

High Court takes into consideration both the questions

relating to the Comity of Courts as well as the

interest of the minor child, which, no doubt, is one of

the most important considerations in matters relating

to custody of a minor child. It has been rightly

observed by the High Court following the decision in

Surinder Kaur’s case (supra) that it was the English

Courts which had the most intimate contact with the

issue in question to decide the same.

28.The fact that the minor child has been declared a

ward of the English Court till she attains majority, is

also a matter of considerable importance in considering

whether the impugned order of the High Court should be

interfered with or not.

29.We are satisfied from the materials produced

before us and the submissions made on behalf of the

parties that the High Court did not commit any error in

relying on the doctrine of Comity of Courts since the

question of what is in the interest of the minor still

has to be considered by the U.K. Court and the interim

order passed in the proceedings initiated by the

Respondent No.1 is only of an interim nature with a

view to return the child to the jurisdiction of the

said Court.

30.We, therefore, see no reason to interfere with the

order of the High Court and the appeal is, accordingly,

dismissed. However, in order to implement the

directions of the High Court, the Respondent husband

shall provide the initial expenses of the appellant and

the minor child for travelling to and staying at the

U.K. for at least a month to attend and contest the

proceedings initiated by the Respondent No.1 before the

High Court of Justice, Family Division, U.K.

31. Let this matter be listed for further orders on

15

th

December, 2009, to enable the respondent-husband to

submit a proposal as to how the travel arrangements and

the arrangements for the appellant and her minor

daughter to stay in the U.K., at least for a month, is

to be made. Till then the interim order passed in the

appeal shall continue to be operative.

32.There will be no order as to costs.

…………………………………………J.

(ALTAMAS KABIR)

……………………………………………J.

(CYRIAC JOSEPH)

New Delhi

Dated : December 9, 2009