New Delhi, The Supreme court on January 27, denied custody of two children staying with their father in India to the mother who is staying in the United States as the children were not willing.
A bench comprising Chief Justice NV Ramana along with Justice A.S. Bopanna and Justice Hima Kohli on January 27, 2022, dismissed the Special leave petition filed by the mother Delna Khambatta, against the Bombay High Court order which had allowed the children to stay back in India with the father.
The case pertains to the mother, an American citizen residing in Vermont, United States, who filed a Habeas Corpus petition in Bombay High Court for a direction to her husband, to produce their daughters before the Court, and to hand over custody of the daughters to her. The Petitioner claims that the husband illegally took away the daughters from shared custody as granted by a competent court in the United States of America.
The husband, Dr. Rustum Sam Boyce who is residing in Surat (Gujarat) India opposed the claims of the wife. A case of divorce and other matrimonial proceedings is also going on before the Family Court in Surat.
The Bombay High Court while deciding the issue observed that it was conscious of the fact that Petitioner is the mother of the children, however, that alone cannot be a factor for passing an order in her favor. Furthermore, the children during the interaction had informed that they have been in India for quite some time and developed roots in the country. As the children have expressed their desire to remain in India and continue to stay with their father, the said fact cannot be ignored and dismissed the Habeas Corpus petition filed by the Mother.
After the said dismissal by the Bombay High court, the Petitioner- Mother approached the Supreme Court in a special leave petition assailing the final order passed by the Bombay High Court.
The Supreme court on January 17, 2022, directed both the children (daughters) to appear before it on January 19, through virtual mode.
On January 19, 2022, due to a connectivity issue, the Court could not interact with the daughters properly and listed the matter for January 27 which was accordingly heard.
The Chief Justice observed that the scope of a Habeas Corpus petition was very limited before the Supreme Court and disposed of the petition, without giving any substantive relief to the Petitioner. The CJI observed that Petitioner-mother should try her luck in the ongoing proceedings before the Family Court, pending in Surat.
Senior Advocate Sidharth Luthra, appeared for the Petitioner- wife briefed by Ms. Supriya Juneja, Advocate on Record.
Senior Advocate Siddharth Bhatnagar, appeared for the Husband briefed by Mr. Debmalya Banerjee- Partner, Mr. Rohan Sharma, Mr. Nicholas Choudhury, Mr. Anmol Advocates from law firm Karanjawala & Co (Advocate on Record) and Mr. Mac Bodhanwalla, Advocate, Sheroy Bodhanwalla and Sakshi Sharma, Advocates.
The bench said, “Further, taking into consideration the facts and circumstances of the instant case, we grant liberty to the parties to avail the remedies available to them in accordance with law before an appropriate court.”
“We make it clear that we have not expressed any opinion on the merits of the case and the same shall be decided by the competent court uninfluenced by any of the observations made by the High Court or this Court.” The SLP is, accordingly, disposed of, the Supreme Court said.
The facts leading to the filing of the present Writ Petition are that the petitioner Delna Khambatta and respondent no 3 Dr. Rustum Sam Boyce got married at Ahmedabad in Gujarat on December 04, 2001, as per Parsi Zoroastrian rights and customs. They moved to the United States thereafter. They had two daughters who are now 17 years and 15 years of age respectively. All four were living in the United States of America (USA) when on August 09, 2017, the wife filed a suit for divorce before the Superior Court in Vermont, USA.
On being served with a summons, the husband filed a motion before the said Court at Vermont, USA, for dismissal on the ground of jurisdiction, claiming that the parties were governed by the provisions of the Parsi Marriage and Divorce Act, 1936 (hereinafter referred to as the Act of 1936), as per the provisions of which Courts of India were competent to exercise jurisdiction.
On October 18, 2017, the husband filed a divorce petition against the wife, under the provisions of Parsi Matrimonial laws before the District Court at Surat. On February 17, 2018, the husband filed an application seeking an anti-suit injunction against the wife to restrain her from proceeding in the matter before the Court in Vermont, USA.
On March 13, 2018, the Court at Vermont USA dismissed the aforesaid motion filed by the husband challenging the jurisdiction of the Court at Vermont.
On April 07, 2018, the wife filed an application before the District Court at Surat challenging the jurisdiction of the said Court to adjudicate matrimonial disputes between the parties. On April 17, 2018, the District Court at Surat passed an order allowing the aforesaid application of the husband thereby granting an anti-suit injunction against the Petitioner from pursuing proceedings filed before the Court at Vermont and from fling or pursuing any application or proceeding before the said Court.
The District Court at Surat directed the wife to place a copy of the said order before the Court at Vermont and dismissed her application filed by her challenging the jurisdiction.
Between April and June 2018, the wife continued to press the proceedings before the Court at Vermont USA, while the husband placed a copy of the order dated April 17, 2018, passed by the District Court at Surat.
The husband filed an application for initiation of contempt proceedings against the wife before the District Court at Surat as she continued to press the proceedings before the Court at Vermont USA. The said application is still pending. In the meanwhile, the wife filed an appeal before the High Court at Gujarat challenging the April 17, 2018 order passed by the District Court at Surat, which was dismissed as not maintainable with liberty to file appropriate proceedings. The wife then filed a Special Civil Application before the High Court. Against this backdrop, on October 04, 2018, the Petitioner filed Writ Petition (Civil) before the Supreme Court of India challenging the vires of certain Sections of the Act of 1936.
On November 14, 2018, the Court at Vermont USA passed an order granting shared parental rights and responsibilities to the wife and husband. This was a consent order, stating the manner in which the parties would share custody of the daughters. On November 19, 2018, the Supreme Court of India passed an order observing that pendency of proceedings will not come in the way of the parties to explore the possibilities of settlement or continuing the proceedings before the Court in the USA.
On May 07, 2019, the Gujarat High Court refused to adjourn the proceedings pending before the District Court at Surat sine die in view of the pendency of the writ petition filed by the wife before the Supreme Court of India.
The Gujarat High Court also disposed of the Special Civil Application filed by the wife. On July 10, 2019, the Supreme Court of India recorded that the parties would attempt to settle their disputes through mediation and that they agreed that till then the adversarial proceedings would be kept in abeyance.
At this stage, in the month of July 2019, the husband indicated that he desired to travel to India with both daughters in the month of August. As per the order of shared custody passed by the Court at Vermont USA, the husband forwarded his travel itinerary to the court according to which he was to travel with both the daughters from Boston to Mumbai on August 05, 2019 and return back to Boston with the daughters on August 18, 2019.
It is an admitted position that the husband and the daughters did not return to Boston as per the said travel plan and they have continued to reside in India till date.
The husband filed an application before the Court at Vermont USA, seeking modification of the order of shared custody passed by the said Court on November 14, 2018. Along with this motion, handwritten letters allegedly written by the daughters were also placed before the said Court, wherein they stated that they desired to relocate to India with their father
On August 28, 2019, the Court at Vermont USA rejected the aforesaid motion filed by the husband. On August 29, 2019, the independent attorney appointed by the said Court for the daughters, filed a motion to allow them to testify as regards evidence of alleged abuse at the hands of the Petitioner.
On September 03, 2019, the Supreme Court of India passed an order recording the subsequent development of the daughters being brought to India and their alleged reluctance to go back. It was also recorded that the issue regarding alleged violation of orders of the Court at Vermont, USA, would be attended to by the said Court and it was also recorded that any proceedings initiated by the wife would be subject to the right of the husband to raise objection of the jurisdiction of the Court at Vermont USA, in view of the existing statutory provision.
In view of the husband failing to bring back the daughters to the USA, the Court at Vermont, USA, by order dated November 07, 2019, found the husband to be in contempt of the orders of the said Court and directed that to purge the contempt, the husband shall return the daughters to Vermont as soon as possible and not later than November 12, 2019, by 5 p.m. It is relevant that on October 11, 2019, the Court had also issued an arrest warrant against the husband.
Against this backdrop, on December 03, 2019, the Court at Vermont USA, passed an order awarding sole legal and physical parental rights and responsibilities of the daughters to the mother/wife.
On December 09, 2019, the Court at Vermont USA passed a further order recording that Respondent No.3 may purge the contempt by returning the daughters to Vermont. The Court also directed the husband to pay $ 1000 per day from September 03, 2019, to the wife as compensatory relief.
In the meanwhile, by order dated November 19, 2019, the Supreme Court of India referred the matter for attempting settlement to the Supreme Court Mediation Centre, observing that insofar as the proceedings pending before the Court at Vermont USA were concerned, they would take their own course. Thereafter, by order dated January 24, 2020, the Supreme Court of India appointed Justice S. J. Vazifdar (former judge of this High Court and retired Chief Justice of the Punjab and Haryana High Court) as mediator.
At this stage, the Petitioner filed the present writ petition before this Court, wherein on February 06, 2020, notice was issued for final disposal. On March 03, 2020, this Court recorded the fact that the Supreme Court of India noted that the proceedings in the present petition filed before this Court would be kept in abeyance in view of the pending mediation between the parties. Accordingly, the hearing of this petition was deferred.
On October 26, 2020, the Supreme Court of India passed an order recording that report was received from the mediator Justice S.J. Vazifdar stating that despite his best efforts, the settlement between the parties was not possible.
In this situation, the Supreme Court of India admitted the said writ petition filed by the Petitioner challenging certain provisions of the Act of 1936. It was also recorded that the proceedings pending before this Court and the Court at Surat could continue in accordance with the law. Accordingly, the present writ petition was taken up for consideration on merits.
In view of the multiple proceedings initiated by the rival parties against each other before the Supreme Court of India, High Court at Gujarat, District Court, Surat, the Court at Vermont U.S.A. and now the present Writ Petition before the Bombay High Court, as also the slew of orders passed in these proceedings, the contentions raised on behalf of the parties are detailed and vehement.
The Counsel appearing for the Petitioner (wife)as well as the Respondent No.3(Husband) have referred to and relied upon a series of judgments of the Supreme Court of India and they have sought to interpret these in support of their respective contentions. The concepts of comity of Courts, the conduct of parties, and the interest and welfare of the children are brought into focus by the rival parties, in order to support their claims. Hence, a brief reference to the contentions raised on behalf of rival parties is necessary, in order to consider the position of law and then to apply the same to the facts of the present case.
Amir Arsiwala, counsel appearing for the Petitioner argued that the husband by his conduct, has demonstrated scant respect for rule of law and he defantly fouted orders of the Court at Vermont, USA in proceedings where he had participated. It is submitted that the very act of the husband in taking away the daughters from the jurisdiction of the Court at Vermont USA and in the face of a consent order of shared custody, to which he was a party, shows that he cannot be trusted as a person interested in what can be held to be in the best interest of the daughters.
The husband had consented before the Court at Vermont, USA, for shared custody to both the parents. The action of the husband in defiantly violating the terms of the said consent order amounted to contempt of the Court at Vermont, USA. The said Court had passed an order holding him in contempt and the Courts of this country
The counsel for the wife argued that the Indian courts ought to respect the orders and directions given by the Court at Vermont, USA, by applying the principle of comity of Courts. This would necessarily require a direction to return the daughters back to the jurisdiction of the Court at Vermont, USA, and to join the proceedings before the said Court.
The husband ought not to be permitted to take advantage of his own wrong. The counsel for the petitioner (wife) relied upon the judgment of the Supreme Court of India in Surya Vadanan Vs. State of Tamil Nadu & Ors. [(2015) 5 SCC 450], in support of the said proposition.
A perusal of the series of orders passed by the Supreme Court of India in the writ petition filed by the Petitioner challenging certain provisions of the Act of 1936, would show that it was repeatedly observed that the Court at Vermont, USA had jurisdiction and that the proceedings before the said Court would run their own Course. This was an indication that it was only the Court at Vermont, USA, which had jurisdiction to decide as to what was in the best interest of the children i.e. the daughters herein.
Although the series of judgments of the Supreme Court of India in such matters has given paramount importance to the best interest of the children, the relevant factors in such cases are the place where children have lived for a long time thereby indicating that the Court in whose jurisdiction the children have so lived is best suited to decide the aspect of the best interest of the children.
A perusal of orders passed by the Court at Vermont, USA, would also show that the said Court was very much alive to the said aspect of the best interest of children and that therefore, the children need to be brought back to the jurisdiction of the said Court for a just and proper decision on the said aspect of the matter.
The husband is not justified in relying upon letters allegedly written by the daughters expressing their willingness to live only with their father, because there is every possibility of tutoring them, particularly because they are totally dependent on the father for every aspect of their life while residing in India.
On the other hand, Mr. Anoshak Daver, counsel appearing for the husband submitted that a proper interpretation of the orders passed by the Court at Vermont U.S.A. and the stand taken by him before the said Court would show that he did not submit to the jurisdiction of the aforesaid Court. An objection to the jurisdiction of the said Court was raised in the first instance by the husband and whatever proceedings were attended to on his behalf were without prejudice to the objection of jurisdiction.
The counsel for the husband argued that In view of the fact that India is not a signatory to the Hague Convention of 1980 on Civil Aspects of International Child Abduction, the law of India applies in such cases, where there is a controversy raised amongst parents with regard to custody of children, in the backdrop of matrimonial disputes. Once this position is accepted, it becomes clear that the law laid down by the Supreme Court of India in a series of judgments applies, which protects the right of the parents who bring their children into this country to continue with their custody so long as it is demonstrated that such custody is in the best interest of the children.
The counsel further said that the Supreme Court of India has also held that the principle of the best interest of the children shall trump all other principles, including the principle of comity of Courts even when an order is passed by a foreign Court in respect of custody of such children. Thus, as long as the husband is able to demonstrate that it is in the best interest of the daughters that they continue to reside with him in India, the contentions raised on behalf of the Petitioner cannot be accepted.
The Bombay High Court observed that the daughters in the present case are not minors of very young age, who cannot form any intelligent opinion about subject matters. The elder daughter is 17 years old and the younger one is 15 years old. They have placed letters on record before the Court at Vermont, U.S.A., as also affidavits before the Supreme Court of India, clearly stating that they wish to live with their father and they have indicated abuse suffered by them at the hands of the Petitioner. In fact, the daughters were ready to lead evidence before the Court at Vermont, the U.S.A. on the said aspect of the matter. Considering such material on record, this Court cannot ignore the opinion of the daughters, particularly when they expressed their desire to live with their father even before this Court.
The father is not averse to the mother having visitation rights so that she can continue her association with the daughters. But, forcing the daughters to go back to the U.S.A. would not be in their interest at all and it would not be in the interest of justice.
The Bombay High Court said, Before we consider rival submissions made on behalf of the contesting parties, it is necessary to refer to the position of law as it emerges from the judgments of the Supreme Court of India in such matters. Keeping the paramount consideration of the best interest of the children in mind, this Court ought to dismiss the Writ Petition, the Court held. LAB/SNG