(A.M. Khanwilkar and Deepak Gupta, JJ.)
Kanika Goel _____________________________________ Appellant
v.
State of NCT of Delhi & Another ________________ Respondent(s)
MA Nos. 2487-2492 of 2018 in Criminal Appeal Nos. 635-640 of 2018, decided on December 4, 2018
The Order of the court was delivered by
A.M. Khanwilkar, J.:—
1. These Miscellaneous Applications have been filed by respondent No. 2 – Karan Goel, husband of the appellant Kanika Goel, in Criminal Appeal Nos. 635-640 of 2018 which were disposed of vide judgment of this Court dated 20th July, 20181. In the said judgment, this Court considered the correctness of the decision of the Delhi High Court in a petition filed by respondent No. 2 for issuance of a writ of habeas corpus and to grant custody of the minor child M. This Court declined the relief of the custody of the minor daughter on the finding that she was in lawful custody of the (appellant) mother.
2. The reliefs claimed in the present applications read thus:
“PRAYER
It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to:
a) Pass directions directing the Appellant to return back to the US along with the minor child M in compliance with the directions passed by this Hon’ble Court dated 20.07.2018 and 20.08.2018 in Criminal Appeal No. 635-640 of 2018 in a time bound manner, failing which the custody of the minor child M be handed over to the Respondent No. 2 so as to repatriate the minor child M to the jurisdiction of US Court; and
b) Pass such other and further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.”
3. The aforementioned relief in prayer clause (a) is in two parts. The first part of the relief is founded on the assumption that a direction has been given by this Court to the appellant to return to the US along with minor child M vide judgment and order dated 20th July, 2018 and 20th August, 2018. The second part of the relief is an alternative prayer that if the appellant fails to return to the US along with minor child M in a time-bound manner, the custody of the minor child M should be handed over to respondent No. 2 so that he can take his daughter back to the US to the jurisdiction of the US Court.
4. For considering the first part of the relief, it will be essential to sieve the judgment dated 20th July, 2018 and also the subsequent orders passed by this Court on 20th August, 2018 and 14th September, 2018 (to which one of us, Justice A.M. Khanwilkar, was a party) to discern as to whether any direction has been given to the appellant, either express or implicit, to return to the US along with the minor child M. If we were to hold that no such direction has been given to the appellant by this Court, the reliefs prayed in these applications must inevitably fail. For, after the judgment rendered on 20th July, 2018, including the clarificatory order dated 20th August, 2018, this Court has become functus officio. Besides, the parties may have to take recourse to substantive proceedings for whatever relief they intend to pursue against each other including for custody of the minor child.
5. In a petition for issuance of writ of habeas corpus for granting custody of a minor child, the central aspect to be considered by the Court is whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child should be left in the care and custody of somebody else, depending on which appropriate directions can be passed. In the present case, that exercise has already been done by this Court, which culminated in the decision dated 20th July, 2018. It is apposite to note the relevant portion of the said decision, which reads thus:
“37. It is not disputed that the appellant and minor child are presently in New Delhi and the appellant has no intention to return to her matrimonial home in the USA. The appellant has apprehensions and serious reservations on account of her past experience in respect of which we do not think it necessary to dilate in this proceedings. That is a matter to be considered by the court of competent jurisdiction called upon to decide the issue of dissolution of marriage and/or grant of custody of the minor child, as the case may be. For the time being, we may observe that the parties must eschew from pursuing parallel proceedings in two different countries. For, the first marriage between the parties was performed in New Delhi as per Anand Karaj ceremony and Hindu Vedic rites on 31-10-2010 and the petition for dissolution of marriage has been filed in New Delhi. Whereas, the civil marriage ceremony on 19-3-2011 at Circuit Court of Cook County, Illinois, USA, was performed to complete the formalities for facilitating the entry of the appellant into the US and to obtain US Permanent Resident status. It is appropriate that the proceedings pending in the Family Court at New Delhi are decided in the first place including on the question of jurisdiction of that court. Depending on the outcome of the said proceedings, the parties will be free to pursue such other remedies as may be permissible in law before the court of competent jurisdiction.
38. As aforesaid, it is true that both Respondent 2 and also the minor child M are US citizens. The minor girl child has a US. passport and has travelled to India on a tenure visa which has expired. That does not mean that she is in unlawful custody of her biological mother. Her custody with the appellant would nevertheless be lawful. The appellant has already instituted divorce proceedings in the Family Court at Patiala House, New Delhi. Respondent 2 has also filed proceedings before the court in the US for custody of the minor girl child, directing her return to her natural environment in the US. In such a situation, the arrangement directed by this Court in Nithya Anand Raghavan2, as exposited in paras 70 and 71, may be of some help to pass an appropriate order in the peculiar facts of this case, instead of directing the biological mother to return to the US along with the minor girl child, so as to appear before the competent court in the US. In that, the custody of the minor girl child M would remain with the appellant 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 and in particular as delineated in the interim order passed by us reproduced in paras 12 and 13 (twelve and thirteen), above.
39. A fortiori, dependent on the outcome of the proceedings, before the Family Court at New Delhi, the appellant may then be legally obliged to participate in the proceedings before the US court and must take all measures to effectively defend herself in the said proceedings by engaging solicitors of her choice in the USA to espouse her cause before the Circuit Court of Cook County, Illinois, USA. In that event, Respondent 2 shall bear the cost of litigation and expenses to be incurred by the appellant to pursue the proceedings before the courts in the native country. In addition, Respondent 2 will bear the air fares or purchase the tickets for the travel of the appellant and the minor child M to the USA and including their return journey for India, as may be required. Respondent 2 shall also make all suitable arrangements for the comfortable stay of the appellant and her companions at an independent place of her choice, at a reasonable cost. Further, Respondent 2 shall not initiate any coercive/penal action against the appellant and if any such proceeding initiated by him in that regard is pending, the same shall be withdrawn and not pursued before the court concerned any further. That will be the condition precedent to facilitate the appellant to appear before the courts in the USA to effectively defend herself on all matters relating to the matrimonial dispute and including custody and guardianship of the minor child.”
(emphasis supplied)
6. From the above extracted portion, we have to discern as to whether any direction has been issued to the appellant to return to the US along with the minor child M.
7. We may also advert to the order passed by this Court on 20th August, 2018 on an application filed by respondent No. 2-husband, pointing out that there was some obvious error in the narration of factual position in the judgment dated 20th July, 2018. The Court disposed of the said application in the following terms:
“ORDER
Heard Ms. Malavika Rajkotia, learned counsel for the appellant and Dr. A.M. Singhvi, learned senior counsel along with Mr. Prabhjit Jauhar, learned counsel for respondent No. 2.
The present application has been filed on the ground that this Court while delivering the judgment on 20.07.2018 has noted that the custody proceedings are pending before the Family Court at Patiala House, New Delhi, which is factually not correct.
In view of the aforesaid, we direct that wherever this Court has stated that “the custody proceedings are pending before the Family Court at Patiala House, New Delhi” and has even observed that “both the parties shall cooperate for disposal of the case” the same shall stand deleted.
Needless to say, all other aspects and analysis made in the judgment shall remain undisturbed. M.A. stands disposed of accordingly.”
8. In addition, respondent No. 2 had filed a contempt petition against the appellant alleging that she had not complied with the judgment of this Court dated 20th July, 2018, as clarified on 20th August, 2018. That contempt petition came to be dismissed on 14th September, 2018, by recording as follows:
“ORDER
In the course of hearing, Dr. Abhishek Manu Singhvi, learned senior counsel appearing for the petitioner very fairly stated that as a large hearted husband, he does not intend that the respondent wife, who at one point of time was dear to him, should face the contempt of this Court. The contempt petition, in our view, is not maintainable. However, we do not intend that the petitioner should bury his hope and, therefore, grant him liberty to initiate proper proceedings, as advised in law.
The contempt petition stands dismissed accordingly.”
9. Be it noted that immediately after the dismissal of the contempt petition by this Court, the appellant, on 14th September, 2018, rushed to affirm the affidavit in support of the present Miscellaneous Applications at Chicago, Illinois, USA and moved these applications for listing before the Court on 17th September, 2018. The order passed on the contempt. petition, however, had granted liberty to respondent No. 2 to initiate proper proceedings (which means substantive proceedings for appropriate relief).
10. Even on a fair reading of the relevant portion as extracted above or for that matter the entire judgment of this Court and the subsequent orders referred to above, there is nothing to indicate that any “direction” has been issued to the appellant to return to the US along with the minor child M. This Court, however, in the peculiar facts of the case on hand as noted in paragraphs 36 and 37 of the judgment, observed that the parties must eschew from pursuing parallel proceedings for custody of the minor girl child in two different countries and further it would be appropriate that the proceedings pending in the Family Court at New Delhi in that regard are decided in the first place, including on the question of jurisdiction of that Court.
11. In paragraph 38 of the judgment, after noting that the appellant had already instituted divorce proceeding in the Family Court at New Delhi, this Court went on to observe that in the peculiar facts of this case, instead of directing the biological mother to return to the US along with the minor child M, the custody of the minor child M would remain with the appellant until she attained the age of majority or the Court of competent jurisdiction, trying the issue of custody of the minor child, ordered to the contrary, with visitation and access rights to the biological father whenever he visited India, on specified terms. It necessarily followed that only after the disposal of the concerned proceedings before the Family Court at New Delhi, the appellant may be required to contest the proceedings pending before the US Court between the parties.
12. Relying on the order dated 20th August, 2018, it was argued by the respondent No. 2 that this Court had noted that no proceeding for custody was pending in India and that the parties need not to participate in any further proceedings in India for custody of the minor child. It was also urged that this Court had rejected the argument of the appellant that it was open to her to reinitiate custody proceedings in India. On a fair reading, the order dated 20th August, 2018, merely takes note of the factual error committed in the judgment dated 20th July, 2018 in recording about the pendency of custody proceedings before the Family Court at New Delhi. That factual error has been ordered to be corrected vide the order dated 20th August, 2018 by deletion of the following words – “that the custody proceedings are pending before the Family Court at Patiala House, New Delhi” and also – “both parties shall cooperate for disposal of the case”. That, however, does not mean that this Court has restrained the appellant from reviving the proceedings for grant of custody of the minor girl child to her, being the mother. No such meaning can be deduced from the order dated 20th August, 2018. Whether such proceedings deserve to be entertained in law, is a matter to be decided by the concerned Court. The respondent No. 2 cannot be heard to say that he is not liable to participate in such proceedings.
13. Suffice it to observe that no direction had been issued to the appellant to return to the US along with the minor child M or, for that matter, to refrain from instituting fresh proceedings for reliefs as may be permissible by law, including in the Courts in India. We say no more lest it may influence the proceedings between the parties.
14. In our opinion, the principal relief claimed in these applications is based on the misplaced assumption that a direction has since been issued against the appellant to return to the US along with the minor girl child M, and which the appellant has failed to comply with. This assumption is a complete misreading of the decision rendered by this Court in the criminal appeals. For, no such direction has been given by this Court. On the contrary, the parties have been granted liberty to pursue proceedings against each other as may be-permissible in law before the jurisdictional Court.
15. Be it noted that the dictum in the opening part of paragraph 39 of the judgment of this Court had been made in the backdrop of the discussion in the earlier part of the judgment, which clearly predicates that the proceedings before the Family Court at New Delhi should be taken to their logical and natural conclusion, expeditiously, in the first place and that the parties must eschew from pursuing parallel proceedings in two different countries for custody of the minor girl child. Thus understood, the main relief as claimed in the present applications must fail.
16. Reverting to the further relief claimed in the second part of prayer clause (a) of the subject applications, the same must also fail, being intrinsically linked to the main prayer, which itself cannot be countenanced for the reasons already alluded hitherto. Furthermore, issuing such a direction in the disposed-of appeal is not only impermissible but would also be in conflict with the view expressed in paragraph 33, about the factum of the best interests and welfare of the minor girl child M. Paragraph 33 reads thus:
“33. The High Court, in the present case, focused primarily on the grievances of the appellant and while rejecting those grievances, went on to grant relief to Respondent 2 by directing return of the minor girl child to her native country. On the totality of the facts and circumstances of the present case, in our opinion, there is 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 M is under the due care of her mother and maternal grandparents and other relatives since her arrival in New Delhi. If she returns to US as per the relief claimed by Respondent 2, she would inevitably be under the care of a nanny as Respondent 2 will be away during the daytime for work and no one else from the family would be there at home to look after her. Placing her under a trained nanny may not be harmful as such but it is certainly avoidable. For, there is likelihood of the minor child being psychologically disturbed after her separation from her mother, who is the primary care giver to her. In other words, there is no compelling reason to direct return of the minor child M to the US as prayed by Respondent 2 nor is her stay in the company of her mother, along with maternal grandparents and extended family at New Delhi, prejudicial to her in any manner, warranting her return to the US.”
(emphasis supplied)
17. Taking any view of the matter, therefore, the relief as articulated in these applications in prayer clause (a), cannot be countenanced. As a result, these applications must fail.
18. The counsel for respondent No. 2 had also argued other issues including about the conduct of the appellant in filing of a fresh petition for custody of the minor child under Section 26 of the Hindu Marriage Act before the Family Court, Patiala. House, New Delhi on 28th August, 2018. In our opinion, it is unnecessary to dilate on those contentions in the present applications. First, because this Court has become functus officio after the disposal of the criminal appeals and in any case, those issues have no bearing on the matter in issue under consideration. Second, this Court has not denuded the parties of their right to pursue remedies as may be permissible in law. Whether the stand taken in the pending proceedings or the fresh instituted, including the question of jurisdiction of the concerned Court in India, will have to be examined on its own merits and in accordance with law. We say no more.
19. The only indulgence that can be shown to respondent No. 2, in the peculiar facts of this case, is to direct the Family Court, Patiala House, New Delhi to dispose of the concerned proceedings (between the parties) pending before it as expeditiously as possible but not later than six months from the date of receipt of the copy of this order, with day-to-day hearings, if necessary. The parties must facilitate the Family Court for an early disposal of the proceedings.
20. Accordingly, these Miscellaneous Applications are dismissed in the above terms. No order as to costs.
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1 (2018) 9 SCC 578
2 (2017) 8 SCC 454
