A two Judge Bench of the Hon’ble Supreme Court of India comprising of Justice A.M. Khanwilkar and Justice J.B. Pardiwala passed a Judgment dated 14-07-2022 in the case of Rajeswari Chandrasekar Ganesh v. The State of Tamil Nadu & Ors. [Writ Petition (Criminal) No. 402 of 2021] and reiterated that welfare of the child is of paramount consideration and the welfare of the child must be decided on a consideration of all relevant factors including the general psychological, spiritual and emotional welfare of the child.
In the present case, the marriage between the Petitioner and the Respondent No. 2 (hereinafter collectively referred to as the Parties) was solemnised on 31-10-2018 as per the Hindu rites and rituals in Chennai, India. Thereafter, within one month of the marriage, the Parties moved to Bear, Delaware, USA. The Respondent No. 2 was working with Satyam Computers at that time however the Parties were constrained to return to Chennai, India as the Project that the Respondent No. 2 had been working on with the Satyam Computers got terminated because of some technical issues in the Company.
On 07-10-2009 and 20-07-2013, a daughter namely Lakshaya Ganesh and a son namely Bhavin Sai Ganesh respectively were born to the Parties. The minor Son is a U.S. Citizen by naturalization and holds an American passport.
In March, 2016, the Petitioner cleared her GRE and TOEFL and secured admission in the Cleveland State University Ohio, USA. In May 2018, the Petitioner completed her Master’s in
Computer and Information Science and also obtained a Graduate Certificate in Data Analytics with the GPA of 3.64. She started working with the G&S Metal Products. At that time, the Respondent No. 2 was working full time in Michigan, USA.
However, due to irreconcilable differences, the Parties got divorced on 12-05-2021 and a Separation Agreement was entered upon between the Parties dated 27-07-2021. A Shared Parenting Plan was arrived at between the Parties vide Order dated 12-05-2021 passed by the Court of Common Pleas, Division of Domestic Relations, Cuyahoga County, Ohio by virtue of which both the Parties got joint custody of their Children.
Contentions of the Petitioner:
The Petitioner has contended that when the Respondent No. 2 managed to find a full time Job in Michigan, USA, he started conceiving ideas of taking away the minor Children. Further, the Petitioner contended that on 01-06-2019, the Respondent No. 2 picked up the minor Children and left for Michigan, USA, from Cleveland, Ohio, without informing the Petitioner-Mother. The Petitioner alleged that the Respondent No. 2 took away all the legal documents of the Petitioner including her passport, State ID, home keys, car keys along with the documents of the minor Children. It was alleged by the Petitioner that locked in her own house and that the Respondent No.2 also filed a false complaint against her alleging that she was mentally ill and that she had run away from a mental award. In view of the above circumstances, the Petitioner filed an Emergency Motion for Temporary Custody of the minor Children along with a Complaint for divorce before the Court of Common Pleas, Division of Domestic Relations, Cuyahoga County, Ohio. The Court vide Order dated 17-06-2019, granted temporary custody of the minor Children to the Petitioner. The Petitioner also filed for an Emergency Motion restraining the removal of the minor Children from the jurisdiction of the Ohio Court. The Court passed a Restraint Order in favour of the Petitioner vide Order dated 17-06-2019. The Petitioner-Mother in the Petition has contended that despite the custody order dated 17-06-2019 in favour of her, the Respondent No. 2 did not seek the permission of the US court and without even informing the Petitioner, removed the minor Children from the specialized School in Ohio to Allegan, Michigan. The Respondent No. 2 tried to alienate the Children from Petitioner-Mother.
The Respondent No.2 sent an Email to the US Court in the form of intimation that he would like to take his minor Children on a vacation to India and asked the Petitioner-Mother to keep the Children for 3 weeks.
On 18-08-2022, when the Respondent No. 2 left for India with the minor Children, the Petitioner moved an Emergency Motion for restraining the Respondent No. 2 from removing the minor Children from the USA. This Shared Parenting Plan was set aside by the Ohio Court vide Order dated 09-02-2022 at the instance of the Petitioner-Mother.
Contentions of the Respondent No.2
The Respondent No. 2 has contended that the Petition filed by the Petitioner is not maintainable as India is not a signatory to the Hague Convention. The Respondent No. 2 submitted that he shared the travel itinerary and given a 3 weeks prior Notice to the Petitioner about his travel to India with the minor Children. He had duly informed the Petitioner vide Email dated 16-09-2021 about the address where he would be staying with the minor Children and that the holiday was planned with the express consent of the Petitioner-Mother. Both the minor Children spoke to their Mother on 17-08-2021 before leaving for India. Thereafter, she was informed about the whereabouts of the Children at all times. The Respondent No. 2 also alleged that the Petitioner suffers from serious mental health issues and has been on medication for the same. The erratic behaviour of the Petitioner resulted in Respondent No. 2 losing his job as the Petitioner approached the employer of the Respondent No.2 and created a distressing scene, thereby resulting in the termination of Respondent No.2 with immediate effect. As the Respondent No. 2 is neither an American citizen nor a Green Card Holder, he cannot go back to the USA without the work permit. The Respondent No.2 has contended that owing to the loss of Job and the Petitioner-Mother’s mental disorders that will be a risk to the minor Children’s emotional and developmental growth, he submitted that they would like to reside in India. As both the minor Children have been admitted in a very good school at Chennai and their education, mental, physical and emotional is being well taken care of by the Respondent No.2 and his parents.
The Supreme Court after taking into consideration the facts and issues arising between the Parties, made its observations based on the following precedents:
1) Ikram Hussain v. State of Uttar Pradesh and Others, AIR 1964 SC 1625
The writ of Habeas Corpus is a prerogative writ and an extraordinary remedy. It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown. This position was reiterated in the case of Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674.
2) Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840
“7…the principle on which the court should decide the fitness of the guardian mainly depends on two factors:
(i) the father’s fitness or otherwise to be the guardian, and
(ii) the interests of the minors.”
3) Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112
It was held that “the principle of comity of courts in relation to non-Convention countries is that the court in the country to which the child is removed will consider the question on merits bearing 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. While considering that aspect, the court may reckon the fact that the child was abducted from his or her country of habitual residence but the court’s overriding consideration must be the child’s welfare.”
4) Syed Saleemuddin v. Dr. Rukhsana and others, (2001) 5 SCC 247
It was observed that “11…it is clear that in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration for the court…”
5) Anjali Kapoor v. Rajiv Baijal, (2009) 7 SCC 322
While referring to the previous cases of Sumedha Nagpal v. State of Delhi, (2000) 9 SCC 745; Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840 and Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC 42 it was observed that the welfare of child prevails over the legal rights of the parties while deciding the custody of minor child.
6) Ravi Chandran v. Union of India and others, (2010) 1 SCC 174
In this case, the Supreme Court observed that “While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the Court where the parties had set up their matrimonial home, the Court in the country to which the child has been removed must first consider the question whether the Court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to the child’s welfare be investigated in a Court in his own country. Should the Court take a view that an elaborate enquiry is necessary, obviously the Court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of the child including stability and security, loving and understanding care and guidance and full development of the child’s character, personality and talents. While doing so, the order of a foreign Court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case.”
7) Surya Vadanan v. State of Tamil Nadu, (2015) 5 SCC 450
The Supreme Court observed that the best interests and welfare of the child are of paramount importance. “However, it should be clearly understood that this is the final goal or the final objective to be achieved — it is not the beginning of the exercise but the end.”
8) Nithya Anand Raghavan v. State (NCT of Delhi) and another, (2017) 8 SCC 454
The paramount consideration in custody matters should be the welfare of the minor Children in respect of whom the Habeas Corpus Writ Petition is filed by one or the other parent. Other factors such as comity of Courts, Orders passed by the Foreign Courts having jurisdiction in the matter regarding custody of a minor child; citizenship of the parents and the minor child; the intimate connect; the manner in which the child is brought in India; i.e. even if it is in breach of order of competent court in foreign jurisdiction; cannot override the consideration of child’s welfare, since it is the responsibility of the Court while exercising the parens patriae jurisdiction, to ensure that the exercise of the extra ordinary writ jurisdiction is in the best interest of the Child, and the direction of the return of the Child to the foreign jurisdiction does not result in any physical, mental, psychological or other harm to the child.
9) Vivek Singh v. Romani Singh, (2017) 3 SCC 231
The Supreme Court observed that in cases where there is a strained relations between the parents and the Child needs the support and company of both the Parents, it becomes difficult for the Court to decide as to whom the custody should be granted. “However, even in such a dilemma, the paramount consideration is the welfare of the child. However, at times the prevailing circumstances are so puzzling that it becomes difficult to weigh the conflicting parameters and decide on which side the balance tilts.”
10) Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42
It was held that “the petition would be maintainable where the detention by parents or others is found to be illegal and without any authority of law and the extraordinary remedy of a prerogative writ of Habeas Corpus can be availed in exceptional cases where the ordinary remedy provided by the law is either unavailable or ineffective.”
11) Vasudha Sethi and others v. Kiran V. Bhaskar and another, (2022) SCC OnLine SC 43
The Apex Court observed that the natural process of grooming in the environment of the native country is indispensable for comprehensive development.
The Hon’ble Supreme Court of India then went to discuss the principles governing Guardians and Wards Act, 1890 and The Hindu Minority and Guardianship Act, 1956 and stated as follows:
Under the Guardians and Wards Act, 1890, a ‘minor’ under the Act has been defined as a person who, under the provisions of the Indian Majority Act, 1875, is to be deemed not to have attained his majority. A ‘guardian’ has been defined as a person having the care of the person of a minor or of his property or of both his person and property. Similarly, under the Hindu Minority and Guardianship Act, 1956 a ‘minor’ has been defined as a ‘minor’ to be a person who has not completed the age of eighteen years. Section 13 of the Hindu Minority and Guardianship Act, 1956 lays down that in the appointment or declaration of any person as guardian of Hindu minor by a Court, the welfare of the minor shall be of paramount consideration.
“73. A mere reading of the provisions of the two Acts referred to above makes it obvious that the welfare of the minor predominates to such an extent that the legal rights of the persons claiming to be the guardians or claiming to be entitled to the custody will play a very insignificant role in the determination by the court.”
After discussion of the aforesaid law, the Court gave the final analysis on consideration of the fact that:
- Both the minor Children were residents of the United States, the minor Son is a natural resident and the minor Daughter is a permanent resident of the USA.
- Both the children have been brought up in the social and cultural milieu of the USA. They are accustomed to the lifestyle, language, customs, rules and regulations, etc. of that country.
- The children are residents of the USA. One of whom is a natural citizen and will have better future prospects if goes back to the USA.
- Both the minor Children were admitted in a special school meant for children with such remarkably high IQ in the USA. Therefore, if the minor children are repatriated to the USA, they will not be subjected entirely to any foreign system of education.
- It is the fundamental right of the Petitioner-Mother to have the company of her children and not to be deprived of the same without a reasonable cause.
Based on above mentioned facts, contentions, submissions of the Parties and observations made by the Apex Court, the Bench held that the Petitioner-Mother is a resident of the USA and has acquired H1B visa via sponsorship and has a good job at Ranstad, USA. The Petitioner has the resources to provide for a comfortable life to her children in the USA. She had secured admission in the Cleveland State University and completed her studies with the GPA of more than 3, while taking care of her children.
On the basis of above mentioned reasons, the Court held that the Petitioner-Mother would be in a position to take good care of her minor children in accordance with the Shared Parenting Plan. The Bench directed the Respondent No. 2 to go back to the USA with both the minor children and abide by the Shared Parenting Plan which can be revived once again by the Authorities by going before the concerned Ohio Court.
While allowing the Writ Petition, the Hon’ble Supreme Court directed that the Respondent-Father should apply for the visa of the two minor Children and upon receiving the visa should travel to the USA and hand them over to the Petitioner-Mother. It was further held that as the Parties had approached the USA Courts for the shared parenting, they should once again approach the same Courts in Ohio for any changes in the Shared Parenting Plan.
The Supreme Court in this case was inclined to accept the fact that as the Parties had accepted the jurisdiction of the US Courts, they would have to seek any amendment from the same course where they had submitted to the jurisdiction and that the Indian Courts would not intervene or interfere in the said agreement between the Parties i.e. the Shared Parenting Plan that they had both voluntarily accepted before the US courts.
We leave it open for the parties to go back to the Court at Ohio and revive the shared parenting plan as was arrived at vide order dated 12th May 2021.
The Indian Lawyer & Allied Services
Sushila Ram Varma
The Indian Lawyer & Allied Services