LexNITHYA ANAND RAGHAVAN versus STATE OF NCT OF DELHI & ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2017] 7 S.C.R. 281
NITHYA ANAND RAGHAVAN
v.
STATE OF NCT OF DELHI & ANR.
(Criminal Appeal No. 972 of 2017)
JULY03,2017
[DIPAK MISRA, A. M. KHANWILKAR AND
MOHAN M. SHANTANAGOUDAR, JJ.]
A
B
Child and Family welfare - High Court issued writ for
production of minor daughter allegedly removed by mother-appellant
C
from custody of father-respondent no.2 from U.K. - High Court
directed the mother to produce her daughter and to comply with the
order of High Court of Justice, U.K. within 3 weeks or in alternative
to handover the custody of daughter to father within 3 weeks from
date of order - Whether the return of the minor to her native state
would be in the interests of the minor - Held: The Courts in India
D
are not denuded from declining the relief to return the child to the
native state merely because of a pre-existing order of the foreign
Court of competent jurisdiction - In the instant case, the minor is
staying in India along with mother, her grandparents and other
family members and relatives unlike in the UK where she lived in a
E
nuclear family of three with no extended family - She would be
more comfortable and feel secured to live with her mother -
Moreover, it is common ground that minor is suffering from cardiac
disorder and needs periodical medical reviews and proper care and
attention - That can be given only by her mother - Respondent
no.2 (father) is employed and may not be in a position to give
F
complete attention to his daughter - In totality of the facts and
circumstances of the case, it is in the best interests of the minor to
remain in custody of her mother (appellant) else she would be
exposed to harm if separated from the mother - High Court was
unjustly impressed by the principle of comity of courts and the
obligation of the Indian Courts to comply with a pre-existing order
G
of the foreign Court for return of the child and including the "first
strike" principle.
Child and Family welfare - Wardship jurisdiction - The
concept of forum convenience has no place in wardship jurisdiction
281
H
282
SUPREME COURT REPORTS
(2017] 7 S.C.R.
A
- In exercise of summary jurisdiction, the Court must be satisfied
that the proceeding instituted before it was in close proximity and
filed promptly after the child was removed from his/her native state
and brought within its territorial jurisdiction, the child has not gained
roots here and farther that it will be in the child's welfare to return
B
c
D
E
F
to his native state because of the difference in language spoken or
social customs and contacts to which he/she has been accustomed
or such other tangible reasons - In such a case, the Court need not
resort to an elaborate inquiry into the merits of the paramount
welfare of the child but leave that inquiry to the foreign Court by
directing return of the child - In exceptional cases, the Court can
still refase to issue direction to return the child to the native state'
and more particularly inspite of a pre-existing order of the foreign
Court in that behalf. if it is satisfied that the child's return may
expose him to a grave risk of harm - This means that the Courts in
India, within whose jurisdiction the minor has been brought must
"ordinarily" consider the question on merits, bearing in mind the
welfare of the child as of paramount importance whilst reckoning
the pre-existing order of the foreign Court if any as only one of the
factors and not get fixated therewith - In either situation - be it a
summary inquiry or an elaborate inquiry - the welfare of the child
is of paramount consideration - While examining the issue the
Courts in India are free to decline the relief of return of the child
brought within its jurisdiction, if it is ·satisfied that the child is now
settled in its new environment or if it would expose the child to
physical or psychological harm or otherwise place the child in an
intolerable position or if the child is quite mature and objects to its
return - Jurisdiction.
Writ of habeas corpus - Object behind - Held: The object
underlying the writ of habeas corpus is to secure the re{ease of a
person who is illegally deprived of his liberty - The writ of habeas
corpus is a command addressed to the person who is alleged to
have another in unlawful custody, requiring him to produce the
G body of such person before the Court - On production of the person
before the Court, the circumstances in which the custody of tExcerpt shown. Read the full judgment & AI analysis in Lexace.