DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

CASE ANALYSIS ON PRATEEK GUPTA Vs SHILPI GUPTA AND Ors

SUBJECT: FAMILY LAW-1

NAME OF THE FACULTY – Dr. S. RADHAKRISHNA

Name of the Candidate – KAUSHIK NANDURI

Roll No. – 18LLB112
Semester – THIRD SEMESTER

1|
 TABLE OF CONTENTS

1. Acknowledgement ……………………………………………………………………3

2. Synopsis……………………………………………………………………………….4

3. Introduction …………………………………………………………………………..5

4. Facts and proceedings of the Case in Contrast with the Judgment…………………...7

5. Relevant Case Laws in Contrast with the Judgment ………………………………...12

6. Analysis of Case Proceedings in Contrast with the Judgment ………………………14

7. Analysis of Core Issues of Law in the Case ………………………………………....17

8. Conclusion …………………………………………………………………………...20

2|
 ACKNOWLEDGEMENT

The Researcher would like extend his heartfelt appreciation to his respected Family Law
Professor, Dr. S. Radhakrishna, for giving him a golden opportunity to take up this Case
Analysis regarding “Prateek Gupta V. Shilpi Gupta and Ors.” The Researcher has tried his level
best to do justice to the analysis by researching and dissemination information and facts from
various reliable sources in order to depict a critical analysis on the given project topic.

3|
 ABSTRACT
The present project revolves around an in-depth analysis of the case “Prateek Gupta V. Shilpi
Gupta and Ors.” which includes a various number of laws such as Section 9 of The Hindu
Marriage Act, 1955, Section 7(b) of The Guardian and Wards Act, 1890 etc. The main disputes
between the parties of the case is with regards to the concerns of custodial rights, visitation rights
and shared parenting.

Objective of the Study – The main objective of the Study is to analyse all the important legal
aspects in the case of “Prateek Gupta V. Shilpi Gupta and Ors.” and derive all the necessary
information and conclusions with regards to the important Legal Concepts and the Legal Scope
of the case.

Scope of the Study- The scope of the study is limited to the analysis of the case of “Prateek
Gupta V. Shilpi Gupta and Ors.” and the Explanations of the Legal Concepts associated with the
case.

Significance of the Study – This study helps us in acknowledging about the various Legal
Concepts such as the Hindu Marriage Act, 1955, The Guardian and Wards Act, 1890 etc.

4|
  INTRODUCTION
The case analysis of “Prateek Gupta V Shalini Gupta and Ors AIR 2017 SC 1537 ; Criminal Appeal No.
968 of 2017; DOD 06/12/2017 mainly deals with the aspects with regards to the Hindu Marriage Act,
1955 and this landmark case law focusses mainly on :

a) Section-9 of the Hindu Marriage Act, 1955

b) Section 7(b) of the Guardian and Wards Act, 1890

Section 9 of the Hindu Marriage Act, 1955 :

Section 9 of the Hindu Marriage Act, 1955 states that when either the husband or the wife has, without
reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply for
restitution of conjugal rights.

What the aggrieved party needs to do is file a petition to the district court and on being satisfied of the
truth of the statements made in such petition and that there is no legal ground why the application should
not be granted, the judge may decree restitution of conjugal rights in his or her favor.

Essential conditions for Section 9 :

1) One party must have withdrawn from the society of the other;

2) The withdrawal must be without any reasonable reason

3) The aggrieved party applies for the restitution of conjugal rights.

Once these conditions are fulfilled, the district court may decree of restitution of conjugal rights to bring
about cohabitation between the estranged parties.

If the aggrieved party is unable to convince the district court and it founds that the petitioner is guilty
then the decree of restitution of conjugal rights is not granted. An added advantage from this is that if
the parties are not following the decree for cohabitation after the passing of the decree, continuously for
one year, it becomes a ground for divorce under Section 13.

5|
Reasonable grounds on which petition for Restitution of Conjugal Rights can be rejected :

1) If the respondent has a ground on which he or she can claim any matrimonial relief;

2) If the petitioner is guilty of any matrimonial misconduct;

3) If the petitioner is guilty of such act, omission or conduct which makes it impossible for the
respondent to live with him; for instance, husband’s neglect of his wife or the constant demand
for dowry, etc. are some reasonable ground for wife not to join the company of her husband.

Burden of proof under Section 9 of the HMA :

Burden of proof operates at two levels. Firstly, burden of proof is on the aggrieved/petitioner who needs
to prove that the respondent has withdrawn from his society. Once that burden is discharged by the
petitioner, it falls on the respondent to prove that there exists a reasonable excuse for the withdrawal.

Section 7 in The Guardians and Wards Act, 1890

Power of the Court to make order as to guardianship :
1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made
(a) appointing a guardian of his person or property or both, or
(b) declaring a person to be such a guardian the Court may make an order
accordingly.
2) An order under this section shall imply the removal of any guardian who has not been
appointed by will or other instrument or appointed or declared by the Court.
3) Where a guardian has been appointed by will or other instrument or appointed or declared
by the Court, an order under this section appointing or declaring another person to be
guardian in his stead shall not be made until the powers of the guardian appointed or
declared as aforesaid have ceased under the provisions of this Act.

The present project revolves around an in-depth analysis of the case “Prateek Gupta V. Shilpi
Gupta and Ors.” which includes a various number of laws such as Section 9 of The Hindu

6|
Marriage Act, 1955, Section 7(b) of The Guardian and Wards Act, 1890 etc. The main disputes
between the parties of the case is with regards to the concerns of custodial rights, visitation rights
and shared parenting.

Furthermore, the researcher would like to analyse and explain the brief facts of the case observed
wherein the Appellant (Father) and the Respondent (Mother) are engaged in a right for custody
of their elder minor son, Aadvik, as well as for restitution of conjugal rights. The Juvenile and
Domestic Relations District Court for Fairfax County, Virginia, USA, decreed that the custody of
the minor child be granted in favour of the Mother and this decision was a major consideration in
the judgement of The Hon’ble High Court, Delhi against the writ petition of habeas corpus filed
by the Father which ruled similarly in favour of the Mother. The aggrieved Father moved the
Hon’ble SC of India which allowed his appeal after careful consideration of the facts of the case
and legal precedents and case laws.

Facts and Proceedings of the Case pertaining to the Judgement

In Prateek Gupta v. Shilpi Gupta, the parents were married in India and shifted to US after
marriage and were blessed with two sons. Due to domestic matrimonial discord the couple
separated and the appellant father left for India leaving the children and wife back in US. He was
shuttling between India and US and in one of the visits to US he took along his elder son to India
and didn’t return. Under these circumstances, the mother approached Juvenile and Domestic
Relations Court Fairfax County; she filed “Emergency Motion for Return of Minor Child and
Established Temporary Custody”. The US Court granted sole legal and physical custody of the
child to the respondent mother. The appellant father in the meanwhile instituted a legal action
against the respondent mother under the Indian enactments, Hindu Marriage Act, 1955 under
section 9 for restitution of conjugal rights and also under Guardianship and Conjugal rights and
also under Guardianship and Wards Act, 1890 in Family Court, Delhi seeking a declaration that
he was the sole and permanent guardian of the child. Further the appellant father also instituted a
suit in Delhi High Court praying to adjudge the proceedings initiated by the respondent mother
as null and void and not binding on him. The appellant father also sought a decree for permanent
injunction against the respondent mother. In the absence of any response to the US Court’s
proceedings and did not appear even after personal service, the respondent mother invoked the
writ jurisdiction of the High Court of Delhi seeking a writ of habeas corpus against the appellant

7|
for the custody of the child. The Delhi High Court ruled in favour of the respondent mother
awarding her the custody of the child, while keeping in view the Fairfax District Court
judgement . The aggrieved appellant father moved the Supreme Court for relief. The apex court
observed in the context of the facts and circumstances of the case, “that the dislodgement of the
child as directed by the impugned decision would be harmful to it…we are of the opinion that
the child, till he attained majority, ought to continue in the custody, charge and care of the
appellant”, till such time a court of competent jurisdiction decides the issue of its custody in
accordance with law. The Supreme Court in its considered view of allowing the children to live
apart for a considerable length of time could have viewed that separation of siblings as not being
in tune with “welfare principle” of children. The in depth analysis of a host of cases concerning
child custody matters by the apex court. Justice Rajesh Bindal Committee on the issue of
intercountry parental removal of children made the following observation in the context of this
case. Further, Prateek Gupta v. Shilpi Gupta, it has been held by the Supreme Court as follows:

• It has been reiterated that the notion of ‘first strike principle’ is not subscribed to and the
judgment of the Supreme Court in Nithya Anand Raghavan has been subscribed to.

• Notwithstanding the principles of comity of courts, and the doctrines of ‘intimate contact and
closest concern’, issue of repatriation of a child removed from its native country is clearly
founded on the predominant imperative of the overall well-being of the child.

• In the process of adjudication on the issue of repatriation, a Court can elect to adopt a
summary enquiry and order immediate restoration of the child to its native country, if the
applicant parent is prompt and alert in the initiative to do so. Overwhelming exigency of the
welfare of the child will be the determining factor for such process. With hurry we cannot bury
justice.

• Doctrines of ‘intimate contact and closest concern’ are of persuasive relevance, only when the
child is uprooted from its native country and taken to a place to encounter alien environment,
language custom etc. with focus on process of overall growth and grooming.

• There is no forum convenience in wardship jurisdiction and the welfare of the child as the
paramount consideration will be the mandate.

8|
• Considering that the child in question was barely 2.5 years old when he came to India and is
now over 5 years old, the child of tender years, he ought not to be dislodged from the custody of
his father whilst proceedings are pending before the Guardian Judge, Delhi.

Relevant case laws in context of the judgment

The main issue in all these cases deal with inter-country parental removal and child custody disputes. In
Nithya Anand Raghavan’s case, both husband and wife lived in U.K. The appellant wife had to return to
India along with the child due to husband’s violent behavior and child’s illness – cardiac disorder. As the
wife did not return to UK along with the child, husband filed a custody petition in UK, seeking the return
of his daughter. The UK court passed an ex parte order directing wife to produce the child in UK court.
While in India, the appellant filed a criminal complaint with Crime against Women Cell (CAW Cell). The
respondent husband filed a habeas corpus writ petition before the High Court of Delhi. The High Court
passed the impugned judgment directing the appellant wife to produce her daughter. The present
appeal before the apex court arose from judgment of writ petition filed by the respondent husband for
issuance of a writ of habeas corpus. Several apex court rulings on child custody matters including
parental removal have been analyzed from the point of welfare principle of the child by both, the high
court and Supreme Court in the present case.5

The Supreme Court made important observations in the course of the judgment. It observed “being a
girl child, the guardianship of the mother is of utmost significance”.6 While considering whether the
minor is in lawful or unlawful custody of another person the apex court observed: “it is enough to note
that the respondent was none other than the natural guardian of the minor being her biological mother.
Once that fact is ascertained it can be presumed that the custody of the minor with his/her mother is
lawful”.7 Again the court said, “Even on a fair reading of this order (of the foreign court), it is not
possible to hold that the custody of the minor with her mother has been declared to be unlawful…We
hold that the custody of the minor with the appellant being her biological mother will have to be
presumed to be lawful”.8 The court further pointed out that “the order of the foreign court must yield
to the welfare of the child”.9 Finally, the court ruled, “taking the totally of the facts and circumstances
into account it would be in the interest of Nethra (child) to remain in custody of her mother and it would
cause harm to her if she returns to the UK”.10

The apex court held in the present case, that taking the totality of the facts and circumstances of the
case into account, it would be in the best interests of the minor (Nethra) to remain in custody of her

9|
mother (appellant) else she would be exposed to harm if separated from the mother. Therefore, the SC
had no hesitation in overturning the conclusion reached by the High Court. Further, the SC observed
that the 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 of the foreign court for return of the child and
including the “first strike” principle referred to in Surya Vadanan’s case.

This being a landmark case, the principles laid down therein are set out here below. These have been
culled out by an in depth analysis carried out by a high level committee constituted by the Ministry of
Women and Child Development to examine in detail the legal issues involved when large number of
women married to Indians abroad, are compelled to return to India with their children when they
undergo violence in their marriage. The Report of Justice Rajesh Bindal Committee’s observations:12 In
Nithya Anand Raghavan’s case the Supreme Court has done away with the principle of comity of courts
and the principle of ‘first strike’ in matters relating to inter - country parental child custody disputes and
have laid down the following principles to be followed:

• Concept of Forum Conveniens has no place in wardship jurisdiction.

• Principle of Comity of Courts not to be given primacy in child custody matters.

• Child removal cases to be decided on merits on welfare of child principle.

• Foreign Court order to be one factor to be taken into consideration.

• Courts free to decline relief of return of child within its jurisdiction.

• Courts may conduct summary or elaborate enquiry on question of custody.

• High Court exercises parens patriae jurisdiction in cases of custody of minors.

• Remedy of Habeas Corpus cannot be used for enforcement of foreign Court directions.

• Parties can avail other substantive remedy permissible in law for enforcement of foreign Court order. •
High Court can examine return of minor without being ‘fixated’ on foreign Court order.

• ‘First strike’ principle disagreed as being in conflict with the welfare of the child.

• Summary jurisdiction to return child be exercised in interest and welfare of child.

10|
Dr. Ravi Chandran -petitioner and Vijayashree Voora - respondent no. 6 got married on December 14,
2000 at Tirupathi, Andhra Pradesh according to Hindu rites. On July 1, 2002, a son - Adithya was born
out of the wedlock in United States of America. The matrimonial discord arose between the petitioner
and respondent no. 6 soon thereafter. Respondent no. 6 approached the State of New York Supreme
Court in the month of July, 2003 for divorce and dissolution of marriage. On April 18, 2005, the State of
New York Supreme Court passed a consent order governing the issues of the custody and guardianship
of the minor Adithya. The Court granted joint custody to the petitioner and respondent no. 6 and it was
also stipulated in the order to keep the other party informed about the whereabouts of the child. On
July 28, 2005, a separation agreement was entered into between the petitioner and respondent no. 6
relying on various provisions of Domestic Relations Law for distribution of marital property, spouse
maintenance and child support. As regards custody of the minor son Adithya and parenting time, the
parties consented to the order dated April 18, 2005. On September 8, 2005, the marriage between the
petitioner and respondent no. 6 was dissolved by the State of New York Supreme Court. Child Custody
order dated April 18, 2005 was incorporated in the order. Later on a consent order was passed by the
Family Court, State of New York on June 18, 2007 whereby the petitioner and respondent no. 6 were to
have legal and physical custody of the minor child jointly. The consent order provided that parties shall
have alternative physical custody of the minor child on a weekly basis. Later, the respondent mother
removed the minor child born in the USA and a citizen of that country in violation of a joint custody
order issued by a competent court in New York. The petitioner father filed a writ petition against the
respondent mother for wrongful removal of the child to India. The Court observed that the comity of
courts and best interests of the child are the two primary legal considerations in international child
abduction.18 It held, however, that a custody decision could not be exclusively based on an order made
by a foreign court. Observing that comity of courts does not require the automatic enforcement of
foreign judgments, it held that due consideration should be given to the facts and circumstances in
individual cases. The domestic court may, for this purpose, order a summary inquiry or an elaborate
inquiry. In the case of a summary inquiry, the child is generally returned to the country from which he or
she was removed. This could be waived if it is established that such return could be harmful to the child.
In an elaborate inquiry, courts examine the merits of the case and make custody related. The Court,
discussing jurisdiction, upheld the precedent in Indian courts in custody-related disputes, namely, that
preference should be given to the jurisdiction that has the most intimate contact with the issues arising
in the case child. This clearly shows that the Indian courts’ position deviates from the Hague Convention,
which primarily relies on habitual residence not intimacy of contact. Considering that the minor in this

11|
case was an American citizen who was born and brought up in USA, the welfare of the child demanded
that child should be returned there.

Prateek gupta vs shilpi gupta case

The appellant and the respondent who married on 20.01.2010 in accordance with the Hindu rites at
New Delhi had shifted to the (U.S), as the appellant was already residing and gainfully employed there
prior to the marriage. In due course, the couple was blessed with two sons, the elder being Aadvik born
on 28.09.2012 and the younger, Samath born on 10.09.2014

Aadvik resided with the parents from his birth till 07.11.2014 and thereafter from 07.11.2014 till
06.03.2015 with the respondent-mother in the United States. Due to irreconcilable marital issues, the
parties separated on 15.11.2014. The appellant had on 08.11.2014 left for India leaving behind the
respondent and her children in U.S. He returned on 18.01.2015 to the U.S, but the parties continued to
live separately, the respondent with their children. The appellant however, made short time visits in
between and on one such occasion i.e o n 24.01.2015, he took along with him Aadvik, to the Dulles
Mall. The appellant did not return with the child in spite offervent insistences and implorations
of the mother. As alleged by the respondent, the appellant thus separated the child from her from
24.01.2015 to 07.03.2015 and on 07.03.2015, the appellant left U.S with the child to India
without any prior information or permission or consent of hers.

Thus, the respondent approached Juvenile and Domestic Relations Court Fairfax County, for its
intervention and for that, on 15.05.2015, she filed “Emergency Motion For Return of Minor
Child and Established Temporary Custody”.

On the next date fixed i.e 19.05.2015, The appellant’s counsel made a “special appearance” to
contest the service. On the date thereafter i.e 28.05.2015, he however informed the court that he
was not contesting the service upon the appellant after hearing the counsel for the parties at

12|
length and also noticing the plea on behalf of the appellant that he intended to return with the
child in U.S and that the delay was because of his mother’s illness.

Fairfax county Court exercised its jurisdiction over the parties to this action with respect to the
Uniform Child Custody Jurisdiction and Enforcement Act, more specifically 20-146.24 and 20-
146.32 of the Code of Virginia, 1950, as amended. The Court ruled that it was in the best
interest of the child, Aadvik Gupta, that he be immediately returned to the custody of the
petitioner and to the Commonwealth of Virginia.

The appellant meanwhile on 26.05.2015 filed a petition for restitution of conjugal rights under
Section 9 of the Hindu Marriage Act, 1955 and also a petition under Section 7(b) of the Guardian
and Wards Act, 1890 in the court of the Principal Judge, Family Court, Delhi seeking a decree
for restitution of conjugal rights between the parties and for a declaration that he was the sole
and permanent guardian of the child, respectively. Subsequently on 26.08.2015 he also instituted
a suit in the High Court of Delhi at New Delhi praying for a decree inter alia to adjudge the
proceedings initiated by the respondent in the court in U.S to be false, malicious, vexatious,
oppressive and nullis juris, being without jurisdiction and also to declare the order dated
28.05.2015 with regard to the return of the child to the custody of the respondent-mother to be
also null and void and not binding on him.

Notably, the respondent in the face of deliberate non-compliance of the order dated 28.05.2015
of the court in U.S had filed a contempt petition before it and the copy thereof was served on the
appellant asking him to show cause. It was in this eventful backdrop, that the respondent invoked
the writ jurisdiction of the High Court of Delhi seeking a writ of habeas corpus against the
appellant for the custody of the child alleging its illegal and unlawful charge by him.

the respondent elaborated that the child was an American citizen by birth, Virginia being his
home State and that in spite of the order(s) of a court of competent jurisdiction, the appellant had
illegally detained him. It was pleaded on behalf of the appellant that the petition for a writ in the
nature of habeas corpus was misconceived in absence of any imminent danger of the life or
physical or moral well-being of the child, as per the proceedings initiated by him under the
Guardian and Wards Act, 1890.

13|
The High Court after taking into consideration, the recorded facts and notable conclusions of the
FairFax County District Court, passed its judgment in favour of the respondent(mother) granting
her custodial rights of the minor child Aadvik.

the High Court seemed to place a decisive reliance on the decision of this Court in Surya
Vadanan v. State of Tamil Nadu1.In Surya Vadanan case, the two minor girls aged 10 years 6
years respectively were British citizens by birth. Following intense matrimonial discords, the
mother had left UK and had come to India with her two daughters. She also instituted a
proceeding in the Family Court at Coimbatore seeking dissolution of marriage. The husband,
finding the wife to be unrelenting and disinclined to return to U.K with her daughters, petitioned
the High Court of Justice in U.K for making the children as the wards of the Court, which passed
an order granting the prayer and required the mother to return the children to its jurisdiction. This
order was passed even before any formal order could be passed on the petition filed by the wife
seeking divorce. This order was followed by another order of the U.K Court giving peremptory
direction to the wife to produce the two daughters before the U.K Court and was supplemented
by a penal notice to her. It was thereafter that the husband moved the Madras High Court for a
writ of habeas corpus on the ground that the wife had illegal custody of the two daughters. The
Madras High Court ruled in favour of the father.

Having determined thus, the High Court, New Delhi directed the appellant to produce the child
in court handing over of his custody to the respondent.

A three Judge Bench of this Court in Nithya Anand Raghavan v. State (NCT of Delhi) 2 did have
the occasion to exhaustively revisit the legal postulations qua the repatriation of a minor child
removed by one of the parents from the custody of the other parent from a foreign country to
India and its retention in the face of an order of a competent foreign court directing its return to
the place of abode from which it had been displaced. The appeal before this Court arose from a
decision of the High Court in a Writ Petition filed by the father alleging that the minor daughter
of the parties had been illegally removed from his custody in United Kingdom (for short,
hereafter referred to as “UK”), thus seeking a writ of habeas corpus for her production. By the
verdict impugned, the High Court directed the appellant-mother therein to produce the minor

1
(2015) 5 SCC 450
2
(2017) 8 SCC 454

14|
childand to comply with an earlier order passed by the High Court of Justice, Family Division,
Principal Registry, United Kingdom within three weeks or in the alternative to handover the
custody of the daughter to the respondent-father therein within that time. The proceeding in
which the Court in the UK had passed the order dated 08.01.2016 had been initiated by the
respondent/father after the appellant/mother had returned to India with the minor.

In Arathi Bandi v. Bandi Jagadrakshaka Rao 3 the minor involved was a male child who was born in USA
and had acquired the citizenship of that country by birth. The child was removed from USA by the
mother in spite of a restraint order and a red corner notice operating against her had been issued by a
court of competent jurisdiction in USA.

In V. Ravi Chandran (Dr.) v. Union of India 4 in which a three-Judge Bench had categorically
held that under no circumstance can the principle of welfare of the child be eroded and that a
child can seek refuge under the parens patriaejurisdiction of the Court. While dismissing the
initiative of the respondent before the UK Court to be one in retaliation of the appellant’s
allegation of abuse and violence and noticeably after she had filed a complaint with the Crime
Against Women Cell (CAWC), New Delhi, it was also urged that the U.K Court had passed ex
parte order without affording any opportunity to her to present her case. It was canvassed further
that the writ petition filed by the respondent seeking a writ of habeas corpus which is envisaged
for urgent and immediate relief was also a designed stratagem of his bordering on the abuse of
the process of the court and thus ought to have been discouraged by the High Court. It was
underlined as well that the High Court in passing the impugned direction had also overlooked
that the respondent had defaulted in the discharge of his parental duty towards the child, who
was suffering from serious health problems, thus compromising in all respects the supervening
consideration of overall well-being of the child.

In Elizabeth Dinshaw v. Arvand M. Dinshaw5 , directing the father of the child therein, who had
removed it from USA contrary to the custody orders of U.S Court, to repatriate it to USA to the mother
not only becauseof the principle of comity but also because on facts, which on independent
consideration merited such restoration of the child to its native State, in its interest. The countries who

3
(2013) 15 SCC 790
4
(2010) 1 SCC 174
5
(1987) 1 SCC 42

15|
are not the signatories of the Hague Convention are of formidable significance and as noticed in Nithya
Anand Raghavan case, are extracted hereinbelow:
“ So far as non-Convention countries are concerned, or where the removal related to a period before
adopting the Convention, the law is that the court in the country to which the child is removed will
consider the question on merits bearing the welfare of the child as of paramount importance and
consider the order of the foreign court as only a factor to be taken into consideration”.

16|