MRS. KANIKA GOEL versus STATE OF DELHI THROUGH S.H.O. AND ANR.

Citation: [2018] 11 S.C.R. 546 · Decided: 20-07-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

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546
SUPREME COURT REPORTS
[2018] 11 S.C.R.
MRS. KANIKA GOEL
v.
STATE OF DELHI THROUGH S.H.O. AND ANR.
(Criminal Appeal No. 635-640 of 2018)
JULY 20, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Custody: Custody of minor girl child – Claim of – On facts,
marriage of appellant-wife and respondent No.2-husband as per
Sikh rites and Hindu Vedic rites in New Delhi – After three months
the parties performed a civil marriage in USA – Birth of girl child
M – Appellant fled from US with the minor daughter and filed divorce
petition in Delhi – Respondent no. 2 filed custody proceeding in US
and got a custody order – However, non-compliance by the appellant
– Writ petition by respondent no. 2 for issuance of writ of habeas
corpus for production of minor daughter and direction to return
her to the jurisdiction of the court in US in compliance with the
order of the US court – Allowed by the Delhi High Court – On
appeal, held: Court must take into account the totality of the facts
and circumstances whilst ensuring the best interest of the minor
child – On facts, there is no compelling reason to direct return of
the minor child to the US nor is her stay in the company of her
mother (appellant), along with maternal grand-parents and extended
family at New Delhi, prejudicial to her in any manner, warranting
her return to the US – 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, the custody of the minor girl
child M to 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 – A fortiori, dependant on the outcome of the proceedings,
before the Family Court, New Delhi, the appellant to participate
and defend herself in the proceedings before the US Court – Her
litigation, travel expenses and stay in US to be borne by respondent
no.2 – In view thereof, order of the High Court set aside.
[2018] 11  S.C.R. 546
546
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Allowing the appeals, the Court
HELD: 1.1 It is not open to contend that the custody of the
female minor child with her biological mother would be unlawful,
for there is presumption to the contrary. In such a case, the High
Court whilst exercising jurisdiction under Article 226 for issuance
of a writ of habeas corpus need not make any further enquiry but
if it is called upon to consider the prayer for return of the minor
female child to the native country, it has the option to resort to a
summary inquiry or an elaborate inquiry, as may be necessary in
the fact situation of the given case. In the instant case, the High
Court noted that it was not inclined to undertake a detailed inquiry.
The question is, having said that whether the High Court took
into account irrelevant matters for recording its conclusion that
the minor female child, who was in custody of her biological
mother, should be returned to her native country. The Court must
take into account the totality of the facts and circumstances whilst
ensuring the best interest of the minor child. The High Court in
the instant case focused primarily on the grievances of the
appellant and while rejecting those grievances, went on to grant
relief to respondent No.2 by directing return of the minor girl
child to her native country. On the totality of the facts and
circumstances, 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 grand-parents and other relatives since her arrival
in New Delhi. If she returns to US as per the relief claimed by the
respondent No.2, she would inevitably be under the care of a
Nanny as the respondent No.2 will be away during the day time
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
lik

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