Facts of the Case

The present lis arose as a result of a Special Leave Petition. The appellant, Mrs. Kanika Goel impugned a judgment of the Delhi High Court. The judgement was pronounced by a three judge bench on 20th July, 2018.

Timeline

31 December 2010: Mr. Karan Goel and Mrs. Kanika Goel solemnized their marriage as per sikh rites i.e. Anand Karaj ceremony and hindu rites in New Delhi.

The appellant (Mrs. Kanika Goel) travels to the USA with her husband on a fiance Visa.

19 March 2011: The couple solemnized their marriage again in front of the County Circuit Court of Illinois.

15 February 2014: M, their daughter is born in Illinois. M is a natural born citizen of the USA and is domiciled in Illinois.

December 2016: Appellant clandestinely removes M under the pretext of taking a short trip to New Delhi in order to meet her parents. 

7 January 2017: Scheduled day of return, albeit, Mrs. Kanika does not return.

Mrs. Kanika initiated divorce proceedings under section 13(1) of the Hindu Marriage Act, 1955 (‘1955 Act’) on grounds of cruelty. Furthermore, she seeked a restraining order against her husband under section 26 of the 1955 act, to inhibit him from removing M from the jurisdiction of the Indian courts. 

Meanwhile, the respondent (husband) filed an emergency petition for sole allocation of parental responsibilities and parenting time in his favor before the Circuit Court in Illinois. Mrs. Goel was apprised of the same through an email. 

11 January 2017: The family court in New Delhi passed an ex-parte order on basis of the application filed by Mrs. Kanika, restraining Mr. Goel  from removing M from jurisdiction of the court until further orders. 

13 January 2017: Mr. Goel filed a missing person complaint in the Vasant Kunj police station. On the same day, the circuit court in Illinois passed an ex-parte order for interim sole custody of the minor child in Mr. Respondents favour.

Mrs. Kanika does not comply with the order of the Circuit court.

1 February 2017: Mr. Goel files a writ in nature of habeas corpus before the Delhi High Court seeking the return of his daughter to the jurisdiction of the Circuit Court, Illinois. 

Mrs. Kanika contested the writ petition. 

The Hon’ble Delhi High Court rules in favor of Mr. Goel, stating that Mrs. Kanika should return to the USA. The court enumerated a few provisos to ensure “soft landing” of Mrs. Goel in the USA. Suffice to say, they provided to safeguard a comfortable stay for Mrs. Goel for a period of six months at least. Mr. Goel conceded to these provisions, pursuant to which a sum of  surety money was deposited in an escrow account.

Lastly, the financial obligations and responsibilities of the litigants towards  each other and the minor child were left to be decided by a competent court in the USA since both the parties were legal citizens of the United States of America.

Aggrieved by the High Court’s judgment, Mrs. Kanika Goel filed a special leave petition before the Indian Supreme Court,  under article 136 of the constitution.

Mrs. Goel assailed the High Court’s judgement alleging it to be of “pre constitutional morality” standard. It was alleged that the HC misconstrued and misapplied the principles of paramount interest, glossed over the doctrine of choice and dignity of the appellant expounded in KS Puttaswamy 1. Furthermore, she surmised that the court  failed to take into account the intimate contact of the minor child with the mother. The appellant contended that being the mother she had a fundamental right to look after the minor child and the fundamental right had whittled away owing to the court’s judgement. Lastly, the appellant maintained that a mother’s role could not be reduced to the appendage of a child, forced to live in a hostile environment.

Condensed, the graveman of the appellant’s argument was three pronged, that-

1. The court had trivialized the issue of domestic violence.
2. There was a manifest error in ascertaining the best interests of M.
3. The court had virtually subjugated the rights of the appellant, compelling her to stay in a hostile environment.

Hence, the present special leave petition.

Judgement

Hon’ble Justice Mr. A.M. Khanvilkar penned the opinion of the Hon’ble court. He alluded to the key observations made by the Delhi High Court in the impugned judgement.

The HC observed that the expression “best interest of child” has a wide connotation and could not be restricted to the love and care of a primary caregiver, i.e. the mother. The child deserved the love and care of her entire biological family. 

The appellant had impediments in ironing out a cordial relationship with her mother in law, but there was no evidence to indicate any turbulence in M’s relationship with her grandmother. In contravention, being a pediatrician, she could be a positive influence on M’s lifestyle.

The HC had then made reference to provisions of the Convention on the Rights of Child, which India ratified and consequently led to the formulation of  National Charter for Children, 2003.

The nub of the convention is that the courts have to determine and arrive at an arrangement that offers the best solution in the facts and circumstances of a given case to achieve the best interests of the child. 

Additionally, the High Court alluded to an earlier judgement pronounced in the Nithya Anand Raghvan’s case wherein the Supreme Court held that the courts must take into account the totality of facts and circumstances whilst ensuring best interest of the minor child. Moreover, the SC had adverted to the Hague Convention of 1980 on “Civil Aspects of International Child Abduction”  

In the Prateek Gupta case, the court held that the paramount consideration of the court is to secure unreserved welfare of the child. The principle of “comity of courts” and doctrine of  “intimate contact” and “closest concern” is merely of persuasive value and subservient to the overall wellbeing of the child. 

In the instant case, the court held that the minor child in custody of her mother should be presumed to be lawful. However, in such cases of habeas corpus, the court may take summary or elaborate trial to ascertain the further course of action. In the present case, the court had deemed a summary trial to be sufficient. 

However, in the Supreme Court’s opinion the Delhi High Court had overly focused on the grievances of the petitioners. This, the court felt, could be precluded since there were no compelling reasons warranting the return of the minor child to another continent. 

Keeping in line with its recent pronouncements, the SC held that determining whether the minor will have better future prospects in her native country or abroad may be a relevant aspect in substantive proceedings for grant of custody, but is not a decisive factum to examine as a threshold in a habeas corpus petition. 

The court reversed the order of the Delhi High Court which had instructed Mrs. Goel to return to the USA. The SC held that the litigants must ensure early disposal of the lis in front of the Family Court at Patiala House, New Delhi in accordance to law. 

Accordingly  the impugned judgements and orders of the Delhi High Court were set aside.