IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL JURISDICTION

CR. WRIT PETITION NO. 97 OF 2021

Abhay S/o. Sanjeev Mogal …..PETITIONER

V/S.
Neha Joshi And Anr. ……RESPONDENT

Compilation of Judgements

Case Held

1.
Jeewanti MEANING OF THE WORD “RESIDENCE”
Pandey vs In order to give jurisdiction on the ground of “residence” - there
Kishan shall exist a ‘permanent character’. In this nature - The court in
Chandra which the respondent is sued is his natural forum.
Pandey. To have settled abode for a considerable time; fixed home.
Temporary/casual visits - can not be legal places of residence.
1981(4) SCC Sec. 19(ii) of HMA, 1955 Place of residence - at the
51 commencement of proceeding and not the place of origin

2. Smt. Surindar The Petitioner (Mother) filed for custody of eight-year-old son and
Kaur Sandhu was granted an order in her favour by the English High Court.
vs Harbax Owing to the Respondent’s parents’ affluence and that the Hindu
Minority and Guardianship Act, 1956 constitutes the father as the
Singh Sandhu natural guardian of a minor son, the High Court ruled in favour of
& Anr the Respondent. However, the Supreme Court held that the welfare
of the child is most important. Additionally, it was held that since
1984(3) SCC the parties’ matrimonial home was in England and that was where
69 their child was born, the jurisdiction of England would be
applicable.

3. Mrs. The Petitioner (Mother) filed a divorce petition in the Circuit

Elizabeth Court of Michigan and it granted the decree of divorce and also
Dinshaw V/s gave her the custody of the son and gave visitation rights to the
Mr. Arvand father. However, the father abducted the child to India. The
Petitioner thereafter filed a Writ petition before the Supreme Court
M. Dinshaw
and the court held that it is in the benefit of the child that he should
and Anr go back to the USA along with his mother and continue as a ward
there, under the concerned court in Michigan. The Court relied on
1987(1) SCC 4 Re H. (infants) [(1966) 1 ALL ER 886], where a similar question
arose where it was decided that all courts in all countries must
ensure that a parent, by removing the children out of their country
discreetly, does not gain any upper-hand by his or her misconduct.

4. Mr. Paul The Respondent (Mother) came to India with her five-year old
 Mohinder child and told the Petitioner that she wanted a divorce and the
Gahun vs custody of the child. Petitioner filed proceedings in Canada and
Mrs. Selina received an interim order in his favour for custody of the child.
The respondent filed a petition before the designated court under
Gahun
the Guardians & Wards Act, 1890 where the Guardian Judge ruled
the restoration of the child to the jurisdiction of the original
2006 (130) country unnecessary. The High Court held that the impugned order
DLT 52 cannot be sustained and the Guardian Court at Delhi would have
no jurisdiction. The petition filed by the respondent before the
Guardian Court was dismissed.

5. Aviral Mittal The Parties had their matrimonial home in India and the child was
vs State & born there and had a British passport. The Respondent (Mother)
went to India and unlawfully retained her three and a half years
Anr
old child in Delhi despite a UK Court direction for her return to its
jurisdiction along with the child. The Delhi High Court directed
2009(112) the mother to take the child to England and join the proceedings
DRJ 63
before the UK Court, failing which the child would be handed
over to the Petitioner to be taken to England as a measure of
interim custody and thereafter it is for the courts of England to
determine which parent would have the custody of the child.

6. Shilpa The above case was appealed in the Supreme Court which
Aggarwal vs dismissed the appeal and to ensure compliance with the orders of
Aviral Mittal the High Court, the Respondent (Husband) was directed to bear
the travel, medical and other incidental expenses of the
& Anr.
Appellant and the child as well as Appellant's legal expenses for
contesting the custody and guardianship case.
2010(1) SCC
591

7. Dr. V. Ravi The Respondent (Mother) came to India with her seven-year-old
Chandran vs child despite a consent order passed by Family Court of New York
Union of which granted joint legal and physical custody of the child. The
Supreme Court held that it was in the best interest of the child that
India he be returned to his native country of the USA by his mother
who must then report to the competent Court. The Petitioner
2010 (1) SCC (Husband) would bear the travelling expenses and make
174 arrangements for the residence of the Respondent and the child till
further orders are passed by the competent court.

8. Sondur Gopal A law which has extra-territorial operation cannot directly be

vs Sondur enforced in another state but such laws are not invalid and is saved
Rajini by art. 245(2) of COI. (Para 19)

Accd. Ss. 1(2), 2 & 10 of HMA, 1955: Act applies to Hindus

(2013) 7 SCC (within its extended meaning)domiciled in the territory of india
 426 and resides outside India. (Para 21, 27)

Domicile of choice: Claim of abandonment of domicile of origin

(IND) or intention to acquire domicile of choice has to be
established unless proved otherwise, there exist a presumption
against it . (Para 34, 35)

Intention can be inferred from:- Residence for a long period,

Change of nationality, any act, event or circumstance in the life of
a person. (Para 35)

9. Arathi Bandi CONFLICT BETWEEN LAWS OF TWO SOVEREIGN STATES:

vs Bandi Removal of child by parent from one country to another in
defiance of court orders of that country, held, entitled to no relief
Jagadrakshak
in Indian courts.
a Rao &Ors.
State having the most intimate contact with issues arrising in the
(2013) 15 SCC case will have jurisdiction. Court of recipient country can either
79 conduct elaborate enquiry - question of custody or it can exercise
jurisdiction summarily - directed wife to return the child to the
USA. - following observations made by SC in Ravi Chandran.
(Paras 33 & 39)

ORDER: Handover the custody to father to produce the child

before US Court as per the orders of that court. Since, child is
citizen of USA.

10. Surya Principles to be followed: Final objective has to be best interest

Vadanan vs and welfare of the child. The principle of comity of the courts to
be followed except for special & compelling reasons(Para 47 &
State of
48)
Tamilnadu &
Ors. A foreign court having the most intimate contact and the closest
concern with the child would be better equipped to appreciate the
(2015) 5 SCC social and cultural milieu rather than a domestic court. (Para 49)
450
Later -INTERIM/ INTERLOCUTORY ORDER - FOREIGN COURT: It
is as capable of making a prima facie fair adjudication as any
Overruled on
domestic court. There is no reason to undermine its competence/
the point of capability. provide ref. to sec. 13 of cpc.
"first strike"
principle; -Violation of foreign order by parent shall be taken into account of
inquiry by passing final order rather than penalizing
domestic
ORDER: In the event - wife does not comply with the direction -
court- child Father is entitled to take children to UK for further proceedings.
has developed
roots in India -
large time gap
11. Nithya Anand If the child is brought in India the courts may conduct (a)
Raghavan vs summary inquiry (b) elaborate inquiry - question of custody.
State of NCT
Indian courts are free to decline the relief of return of child
Delhi. brought within its jurisdiction if the child is now settled in its new
environment & such return - harmful to the child.
(2017) 8 SCC
45 Elaborate inquiry- the pre-existing foreign order has to be
considered as only one of the circumstances. (Paras 40, 42 and 69)

The principle of 'comity of courts' can not be given weightage in

non-convention countries for deciding the matter of custody/
return of child to the native state. (39,42 & 66)

Pendency of a foreign suit does not preclude Indian courts from

trying - suit on same cause of action. (Paras 63,66 and 68)

ORDER: Child to stay with mother until the age of majority with
visitation rights to father unless contrary orders by competent
jurisdiction. Mother shall not disregard proceedings instituted in
foreign court.

12. Tippa Srihari Wife had taken 2 minor kids from the custody of the father in UK
v State of AP and bought them to India.the husband filed a Wardship petition
before the High Court of Justice, Family Division, UK the UK
2018 SCC Court declared the two minor children as its wards with a direction
Online Hyd to wife to cause return of the minor children to the jurisdiction of
123 England and Wales. The UK Court has also rendered a finding that
the two minor children were wrongfully removed from the
jurisdiction of the UK Court which has exclusive jurisdiction in
matters of parental responsibility over the child. The Telangana
HC held that, the foreign court has jurisdiction over the custody of
the children. And hence the custody was handed over to the father.

14. Lahari 56. In our view, the best interest of the children being of
Sakhamuri v paramount importance will be served if they return to US and
Sobhan enjoy their natural environment with love, care and attention of
Kodali their parents including grandparents and to resume their school
and be with their teachers and peers.
(2019) 7 SCC
311 57. We accordingly direct the appellant (Lahari Sakhamuri) to
return to US along with both the children, namely, Arthin and
Neysa, within a period of six weeks from today. We further direct
the respondent (Sobhan Kodali) to make all arrangements of stay
and travel expenses (including air tickets) of the appellant (Lahari
Sakhamuri) and both the children as well as her companion, if any,
in their own house or if she is not willing to stay for any personal
reasons, make all arrangements for stay at the place of her choice
 at reasonable cost. In case the appellant (Lahari Sakhamuri)
reports that she is not inclined to travel to US along with the minor
children, or does not show any interest to accompany the children,
the respondent (Sobhan Kodali) shall deposit a sum of Rs 15 lakhs
in the bank account of the appellant (Lahari Sakhamuri) and proof
of deposit shall be placed in the Registry of the High Court of
Andhra Pradesh which shall thereupon call upon the Consulate
General of the US at Hyderabad to take the custody of the minor
children, namely, Arthin and Neysa, along with their passports and
other travel documents from the appellant (Lahari Sakhamuri) and
hand over the same to the respondent (Sobhan Kodali) with a
condition for taking the custody of the minor children (Arthin
and Neysa) for being taken to US and hand over to the
jurisdictional court in the US until further orders are passed
in the pending proceedings by the US court. The appellant
(Lahari Sakhamuri) will be at liberty to utilise the money
deposited by the respondent (Sobhan Kodali) in connection with
her visit to the US, if so desired, in future and the respondent
(Sobhan Kodali) shall not take any coercive steps against her
which in any manner may result in adverse consequences.

15 Varun Verma Minor child was admittedly born in America and had been living
v State of with her parents in America. It was agreed between the parents
Rajasthan with regard to the sharing of parenting time. It was also agreed
between the parties that they would surrender their passports
2019 SCC including child's passport to the guardian adlitem. The next date of
Online Raj hearing was fixed by the court, the wife instead of appearing
5430 before the Court on the date fixed, came to India along with the
 Overruled minor child. The wife did not honour the terms of the agreement.
Hence, husband was left with no other option but to file the
present petition praying that wife should facilitate the return of the
minor child to the jurisdiction of the US Court. The interest and
welfare of the child will be duly protected and taken care by the
Jurisdictional Court in America in the pending proceedings
regarding custody of minor child.
The Karnataka HC directed to return to US along with her minor
daughter Kiyara Verma within a period of six weeks from today to
enable the Jurisdictional Court in US to pass further orders in the
proceedings initiated by respondent no. 3 regarding custody of
minor child.

16. Yashika Sahu

Overruled the above decision on ground that A writ court in India
v State of cannot, in proceedings like this direct that an adult spouse should
Rajasthan &go to America.
Ors -The appellant wife may like to live in the USA or not, and this is
a personal choice of the appellant wife.
2020 3 SCC - Regardless of the mom’s decision to stay/visit USA, the child
67 is to be sent to USA.
 Para 28

17. Tejaswini In Sarita Sharma (2000) 3 SCC 14 , 2000 SCC (Cri) 568, the
Gaud tussle over the custody of two minor children was between their
And
Others separated mother and father. The Family Court of USA while
v.
Shekhar passing the decree of divorce gave custody rights to the father.
Jagdish When the mother flew to India with the children, the father
Prasad approached the High Court by filing a habeas corpus petition. The
Tewari And High Court directed the mother to hand over the custody to the
Others father. The Supreme Court in appeal observed that the High Court
should instead of allowing the habeas corpus petition should have
2019 SCC 7 directed the parties to initiate appropriate proceedings wherein a
42 thorough enquiry into the interest of children could be made.

18. Sri Nilanjan Supreme Court held that it would be beneficial for the child
Bhattachary to return to the native state because of the differences in
a Vs State oflanguage and social customs.
Karnataka After due deliberation the court had come to the conclusion
that “the welfare of the child would best be served by his
Civil Appeal accompanying the appellant to the US. The child was born in
No 3284 of the US and is a citizen of the US by birth. The appellant has
2020 taken the responsibility for shared parenting while the child
was in the US. The respondent left US shores for a brief
sojourn but has unilaterally resolved not to return.”

20. Vasudha Sethi The Court said that the child has spent more than three years in the
v. Kiran V. United States and 2.5 years in India. As a result, it is impossible to
Bhaskar say that the child has been fully integrated into the social, physical,
psychological, cultural, and academic environments of the United
2022 States or India. By definition, the circumstances in a custody
SCCOnline dispute cannot be comparable. The child’s welfare depends on a
SC 43 number of variables. Human factors, which are inherently intricate
and difficult, are involved in a custody dispute. The
determination of a minor’s custody cannot be made using a
strict formula because what is in the best interests of the child
always depends upon the factual matrix of each case.

21. Rohit Finding: Due to his parents’ green cards, the little child has an
Thammana American passport and is a citizen of the United States, which was
Gowda v. noted by the Supreme Court.The court further stated that the
State of welfare of the child, who is 11 years old and has spent almost ten
Karnataka years in the US, cannot be ignored just because the mother took
the child to India, had him or her enrolled in school, and is now
2022 settling down there. Accordingly, the court ordered the mother to
 SCCOnline send the child back to the United States while allowing the appeal.
SC 937 Rationale: The Supreme Court has ruled that taking the child’s
welfare into account would only support the decision ordering the
child’s return to the USA, where he was born. The kid has an
American passport and is a naturalised citizen. He is used to the
way of life, language, customs, laws, and regulations of his native
country, namely the USA, as a result of having been raised in
the social and cultural values of that nation. The Supreme Court
stated that there must be a distinction made between a child’s
wishes and what is beneficial for the youngster.

22. Rajeshwari Finding: The children are residents of the USA. One of whom is a
Chandrasekar natural citizen and will have better future prospects if goes back to
Ganesh v. the USA. The minor daughter has a remarkable high IQ. She has
State of Tamil been identified to be a gifted child. In such circumstances, both the
Nadu minor children were admitted in a special school meant for
children with such remarkably high IQ in the USA. Such schools
2022 in the USA are specialized in providing education to the gifted
SCCOnline children which, ultimately, helps in the overall development of
SC 885 such children. The special education ultimately enhances the
potential of such children. Both the children in the present case
have better prospects of getting refined education that may
Para 91, 110 ultimately enhance their potential they already possess and are
already accustomed to and comfortable with.

The Court also explained the Doctrine of Parental Alienation

Syndrome, i.e. the efforts made by one parent to get the child to
give up his/her own positive perceptions of the other parent and
get him/her to agree with their own viewpoint. It has two
psychological destructive effects: (1) It puts the child in the middle
of a loyalty contest, which cannot possibly won by any parent; (2)
It makes the child to assess the reality, thereby requiring to blame
either parent who is supposedly deprived of positive traits. The
Court, hence, observed that the intent of the court should be to
circumvent such ill effects.

23. Abhinav FACTS: Family was resident of foreign country- green card
Gyan vs State holder- Child USA citizen.
of
Maharashtra Merely because an order by foreign court was passed after the
& Anr. child was removed from the jurisdiction of the said Court and
brought to India, does not affect the maintainability of petition.
CRL. WRIT writ jurisdiction: interest of justice - its parens patriae
PETITION jurisdiction, to examine and to ensure what lies in the best
NO. 693/202 interests and welfare of the minor child

Minor child being a citizen of the USA - has rights and

privileges - he ought not to be deprived of such rights and
privileges, only because of matrimonial discord between his
parents.The minor child should not be deprived of such facilities,
only on the grounds that the mother does not want to go back to
the USA