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2016 DIGILAW 1202 (GUJ)

Mehdi A. Attarwala v. State of Gujarat

2016-06-29

BIREN VAISHNAV, HARSHA DEVANI

body2016
JUDGMENT : Biren Vaishnav, J. 1. By way of this petition under Article 226 of the Constitution of India, by a Writ of Habeas Corpus, the father, Mehdi A. Attarwala, seeks custody of his minor children Aadil and Aamir, from his wife, Mrs. Lubayna Attarwala, respondent No. 2, herein. 2. The cause to seek such a writ and consequential custody of children is based on an amended order dated February 26, 2016, passed by The Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois, USA, (hereinafter referred to as " The Circuit Court") whereby the Circuit Court, has, in the best interests of Aadil and Aamir, the minor children of the petitioner, awarded their sole custody, and control, to the petitioner and further declared that the minor children reside with him in Carol Stream, Illinois. 3. BRIEF FACTS: 3.1 The petitioner, who immigrated to USA in February 1998 and became a natural citizen of USA, in July 2003, is working as a Software Automation Engineer at SUREPAYROLL, a Paychex Company in USA and is residing in Illinois for the last 12 years. 3.2 The petitioner and the respondent No. 2, Mrs. Lubayna Attarwala were married on 9th July, 2004, in Ahmedabad. Soon after getting married to the respondent No. 2, the petitioner returned to USA and, the respondent No. 2 also subsequently immigrated to USA in March 2005 and therefore the matrimonial home of the parties has been DuPage County, Illinois, USA. The respondent No. 2 also became a naturalised citizen of USA in February, 2011. Both, the petitioner and the respondent No. 2 currently hold American Passports which are valid upto 2/9/2023 and 31/5/2021 respectively. 3.3 It is the case of the petitioner that none of the family members of the petitioner live in Ahmedabad and the parties have never cohabited to set up a matrimonial home in Ahmedabad. 3.4 Aadil Mehdi Attarwala, the petitioner's elder son, was born on December 29, 2009, out of wedlock, at Central DuPage County, Illinois. Aadil has a US Passport, issued on October 12, 2010, and valid upto October 11, 2015. It is the case of the petitioner that, Aadil who is an OCI card holder has been issued an emergency US Passport valid for one year, i.e. till December 22, 2016, by the U.S. Embassy at New Delhi on December 23, 2015. Aadil has a US Passport, issued on October 12, 2010, and valid upto October 11, 2015. It is the case of the petitioner that, Aadil who is an OCI card holder has been issued an emergency US Passport valid for one year, i.e. till December 22, 2016, by the U.S. Embassy at New Delhi on December 23, 2015. With the petition, the petitioner has produced evidence to show that Aadil last studied at LOR-JON Montessori School, Illinois, USA from 2012 - 2014 and also participated in various extra-curricular activities. Therefore according to the petitioner, it is in the bests interests of Aadil to return to Illinois. 3.5 Aamir Mehdi Attarwala, the second son, was born on April 25, 2014, at Central DuPage Hospital, DuPage County, Illinois. Aamir also holds a valid U.S. Passport, issued on June 12, 2014, which is valid upto June 11, 2019. A categorical averment is made in para 6 of the petition that Aamir has been issued a multiple entry Indian Visa by the Consulate General of India at Chicago, USA, on July 3, 2014, valid upto July 2, 2019, however, the Indian Visa bears an endorsement that each stay in India does not exceed 180 days. The pleadings further reveal that, as Aamir also (apart from Aamir) is in Ahmedabad with the respondent No. 2, since August 13, 2014, he has overstayed in India for over a year and has violated the condition of his Indian as per rules/regulations. The respondent No. 2, in her affidavit-in-reply filed to the petition, except a bare denial has not disputed the stand of the petitioner vis-à-vis the residential status of both her sons. Therefore, it is the case of the petitioner that the home state of the parties' minor children, Aadil and Aamir was Illinois and has always and remains the children's home state. 3.6 It is the case of the petitioner that his son Aamir, suffers from a rare disorder described as "penile chordee", a condition in which the head of the penis curves downward or upward at the junction of the head and shaft of the penis. According to the medical certification of Dr. Craig A. Smith and Dr. 3.6 It is the case of the petitioner that his son Aamir, suffers from a rare disorder described as "penile chordee", a condition in which the head of the penis curves downward or upward at the junction of the head and shaft of the penis. According to the medical certification of Dr. Craig A. Smith and Dr. Eva B. Wyrwa, dated May 21, 2014 and June 27, 2014 of the Department of Paediatrics, River North, DuPage County, Illinois, USA, the principal treatment is surgery in infancy and preferred time of surgery is between 6 to 18 months. A certificate dated 8/2/2016 is also on record at Annexure P-13 (Page 70) which states that, if the surgery is not carried out, it can lead to difficult sexual relations including penis fracture, which if sustained, can lead to permanent impotence. The emphasis is made in the petition to the fact that Aamir has been in Ahmedabad for about 21 months and has not undergone the surgical procedure and despite the petitioner's insistence, is not being brought to USA. Since the parties are Muslims, Aamir would also require circumcision. A case is sought to be made out, that, the medical condition of the child is being neglected at the hands of respondent No. 2, hence it is in the welfare of and also in his best interest that he also immediately returns to Illinois, USA for immediate medical treatment and over delayed correctional surgery which is not possible at Ahmedabad. 3.7 On perusal of the pleadings and averments made in the petition, it appears that due to unresolved marital disputes between the petitioner and the respondent No. 2, the respondent No. 2 with her mother left for Dubai to her sister's place, taking along her children Aadil and Aamir as Aadil and she (the mother) were valid OCI card holders and Aamir had a valid Indian Tourist Visa. The respondent No. 2, along with the two sons Aamir and Aadil stayed in Dubai from July 16, 2014 to August 12, 2014 and left for Ahmedabad on August 13, 2014 and are in Ahmedabad since then. According to the petitioner, there are no family members of respondent No. 2, in Ahmedabad, except an ailing father aged 83 and a mother aged 70. According to the petitioner, there are no family members of respondent No. 2, in Ahmedabad, except an ailing father aged 83 and a mother aged 70. Without deliberating on factual issues pertaining to their matrimonial disputes, inter-se, between the petitioner and the respondent No. 2, as that may be the cause of disputes but not the purpose for which the petition is filed, suffice it to state that efforts to resolving them have failed to yield any result and talks to persuade her to return did not bear any fruit. At this stage, it will not be out of place, to note that, when the petition came up for hearing before us, parties, through their Counsels had expressed a desire to find out some amicable solution, but as the meetings did not fructify, the respective Counsels, argued for and on behalf of the parties, requesting this Court that this Court ought to finally decide the issues involved in the petition vis-à-vis the custody of both Aadil and Aamir. 3.8 The petitioner, on March 1, 2015, hired an American Attorney who sent a letter to the respondent No. 2 asking her to return, failing which legal action will be taken. At the behest of the respondent No. 2, the petitioner came to Ahmedabad on March 26, 2015, with his father to arrive at an amicable settlement but the respondent No. 2 refused to return to her matrimonial home, as a result of which the petitioner had to return to USA without the respondent No. 2 and the minor children Aadil and Aamir. 3.9 The root cause, so to say, to invoke, this Court's writ jurisdiction, as referred to earlier were orders dated 29/10/2015 and amended order dated 26/2/2016 by which respondent No. 2 has been ordered to return Aadil and Aamir to their home in DuPage County, Illinois, USA, and that the petitioner be awarded the sole care, custody and control of minor children Aamir and Aadil. The chain of events leading to these orders are summarised as under: "(i) On 9/7/2015, the petitioner filed a petition for child custody and support in the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois, USA. (ii) Summons were issued on 9/7/2015 which was duly served on 17/8/2015. The chain of events leading to these orders are summarised as under: "(i) On 9/7/2015, the petitioner filed a petition for child custody and support in the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois, USA. (ii) Summons were issued on 9/7/2015 which was duly served on 17/8/2015. (iii) On the respondent's failure to respond to the summons, the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois, USA observed that the respondent No. 2 is in default and "the complaint is confessed against the defendant". (iv) By order dated October 29, 2015, the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois, USA directed that the petitioner is awarded sole care, custody and control of the parties' minor children Aadil and Aamir with the issue of visitation of respondent No. 2 reserved until further order of the Court. The respondent No. 2 has been ordered to return Aadil and Aamir to their home in DuPage County, Illinois, USA, to the custody of the petitioner on or before November 12, 2015. (v) The petitioner, on November 29, 2015, came to Ahmedabad from USA with an expectation that the respondent No. 2, in compliance of the order dated October 29, 2015, will return to USA. With the passport of elder son Aadil having expired on 11/10/2015 and the OCI card also being rendered invalid, Aadil's right stay in India was under a cloud. Similarly with Aamir's visa having expired on 12/2/2015 his stay, beyond this date was illegal, the respondent No. 2 was told by the petitioner that there was no valid ground for the sons to remain in India and all the three should return to USA for Aamir's urgent surgery. (vi) Exit permits for return to USA were applied for with the Foreigners Regional Registration Officer (FRRO) with documents and the reason put forth by the respondent No. 2, for overstay as quoted reads as under: "This is to inform you that overstay is caused due to marital dispute. (vi) Exit permits for return to USA were applied for with the Foreigners Regional Registration Officer (FRRO) with documents and the reason put forth by the respondent No. 2, for overstay as quoted reads as under: "This is to inform you that overstay is caused due to marital dispute. The dispute has been resolved and I will return with my children to the United States." (vii) The FRRO, Ahmedabad would have endorsed the exit permits on presentation of confirmed flight tickets for departure within 10 days and after paying fines for violations, however, as the respondent No. 2 back tracked and refused to return to Illinois, USA, the process of obtaining the exit permits was stalled at the hands of respondent No. 2. (viii) Through the intervention of a friend, the respondent No. 2, after initially refusing to do so, handed over Aadil's lapsed U.S. Passport which enabled the petitioner to apply at the U.S. Embassy, New Delhi, for an Emergency Passport to Aadil. However as the Visa has expired, even a fresh OCI card is not being issued to Aadil. Therefore clearly, the stay of both, Aadil and Aamir in Ahmedabad is irregular. (ix) The petitioner returned to USA on 4/1/2016, without respondent No. 2 as well as Aadil and Aamir. In order to avoid any detriment to an amicable settlement, the petitioner prayed for amendment of the order of the Circuit Court dated 29/10/2015 requesting for amending the order and seeking abatement of child support, ordered to be paid by respondent No. 2. On a notice of motion, an amended order dated February 26, 2016 has been passed which reads as under: "IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT, DUPAGE COUNTY, ILLINOIS, USA." Mehdi Attarwala –Petitioner Vs. Libayna Attarwala – Respondemt Case No. 2015 F.455 AMENDED ORDER This cause coming to be heard on Petitioner's Petition for Custody and Child Support, an Order of Default previously entered in this matter, the Court hearing Petitioner's sworn testimony, the Court being fully advised on the premises: THE COURT FINDS: 1. The home state of the parties' minor children, AADIL and AAMIR, was Illinois at the time of filing of Petitioner's Petition for Child Custody and Child Support (initial child custody determination), herein, and has always and remains the children's home state. 2. The Court has subject matter, and personal jurisdiction of parties. 3. The home state of the parties' minor children, AADIL and AAMIR, was Illinois at the time of filing of Petitioner's Petition for Child Custody and Child Support (initial child custody determination), herein, and has always and remains the children's home state. 2. The Court has subject matter, and personal jurisdiction of parties. 3. Mehdi Attarwala is the natural and legal father of AADIL and AAMIR. 4. It is in AADIL and AAMIR's best interests that Petitioner, Mehdi Attarwala, be awarded their sole care, custody, and control and that the minor children reside with him in Carol Stream, Illinois. IT IS HEREBY ORDERED, ADUJDGED, AND DECREED THAT: 1. Petitioner, Mehdi Attarwala, is hereby awarded the sole care, custody and control of the parties' minor children, AADIL and AAMIR. 2. AADIL and AAMIR shall reside with Petitioner in Carol Stream, Illinois. 3. The issue of Respondent's visitation with AADIL and AAMIR is reserved until further order of court. 4. Respondent, Lubayna Attarwala, is ordered to immediately return AADIL and AAMIR to their home in DuPage County, Illinois. 5. The issue of child support is reserved for future consideration and is therefore not ordered at this time. 6. This order is entered nunc pro tunc (effective as) October 29, 2015. Dated February 26, 2016." (x) Armed with this amended order, the petitioner has approached this Court for a writ of Habeas Corpus praying that the respondent No. 2 be directed to produce the minor children Aadil and Aamir before this Court and the custody of the said minor children be handed over to the petitioner and he be allowed to go to Illinois, USA, in accordance with the directions of the Circuit Court at Illinois. 4. Learned advocate. Mr. Anil Malhotra with learned advocate Mr. P.R. Abichandani for the petitioner has taken us extensively through the pleadings in the petition, and contended that, in view of the existing factual scenario, having failed to bring about an amicable settlement between the parties, the only remedy available, to the petitioner, is to seek a remedy of a writ of Habeas Corpus, and, accordingly a direction to the respondent No. 2, be issued, as prayed for, to hand over custody of minor children Aadil and Aamir. 5. 5. Shri Malhotra, vehemently contended that, since the parties neither have a matrimonial home in Ahmedabad nor do the children Aadil and Aamir ordinarily reside in Ahmedabad, it is in the best interest and welfare of the children that, Aadil and Aamir return to Illinois, USA, and the petitioner be awarded their sole care, custody and control, and take them to their home state, Carol Stream, Illinois, to enable the U.S. Court to adjudicate and finally determine issues relating to child custody. 6. In the submission of Mr. Anil Malhotra, learned advocate for the petitioner, it is clearly established from the facts on record, that Aadil and Aamir have been removed from USA and brought to Ahmedabad without the petitioner's consent and their removal being illegal, they deserve to go back to USA. Mr. Anil Malhotra, learned Advocate for the petitioner further contended that, as, both Aadil and Aamir are American nationals by birth and have their permanent home and best education prospects in USA, it is in the welfare and the best interest of Aadil and Aamir that they should be reverted to the custody of the petitioner in USA. Further it is submitted that because the very custody of minor children Aadil and Aamir with the respondent No. 2 is illegal, the custody of the minor children be restored to the father. 7. Mr. Anil Malhotra has pressed into service various judgments of the Apex Court and this Court to bring home the point that, the only remedy available to him to seek enforcement and compliance of the Amended Order of the Circuit Court is by way of a Writ of Habeas Corpus and it is only, in exercise of its jurisdiction under Article 226 of the Constitution of India that the Writ Court can, and ought to pass orders regarding handing over the custody of the children to the petitioner to facilitate their return to Illinois in accordance/compliance with the interim order of the foreign court. Reference to these decisions is made in the latter part of this judgment. However it is the case of Shri Malhotra that the case on hand is squarely covered by the decision of the Apex Court in the case of Surya Vadanan v. State Of Tamil Nadu, (2015) 5 SCC 450 . 8. Reference to these decisions is made in the latter part of this judgment. However it is the case of Shri Malhotra that the case on hand is squarely covered by the decision of the Apex Court in the case of Surya Vadanan v. State Of Tamil Nadu, (2015) 5 SCC 450 . 8. The petition is contested by the respondent No. 2, Lubayna Attarwala, wife of the petitioner, and an affidavit-in-reply has been filed opposing the petition. In a nutshell, the main grievance, that comes out, is that, a matrimonial dispute, inter-se, has been the genesis, of the separation on hand, though, this has been because she has "decided to move to India at her parental home for sometime as a "cooling-off" measure to make things work out." The reading of the reply reveals that: "(a) initially the relationship between the petitioner and respondent No. 2 were good and healthy. (b) the matrimonial relationship soured on issues, which are not germane to the point at issue, and so are not extensively set out. (c) that the respondent No. 2 left USA, travelled to Dubai and then came to Ahmedabad in August 2014 and since then the children are in her legal custody. (d) that the orders of the U.S. Court have been passed without hearing respondent No. 2. (e) that being Indian domicile by choice, the State of Illinois, USA, is not the home state of the children and therefore Indian Courts in Ahmedabad, Gujarat, would have jurisdiction to decide the matter related to custody of children. (f) Reliance is placed on academic progress card and certificates to contend that Aadil is excelling in academics and extra curricular activities in Ahmedabad. And therefore in fact, it is in their best interest and welfare that they continue to reside at Ahmedabad under the care of the respondent No. 2. (g) the contention is, that it has become difficult for the respondent No. 2 to stay with the petitioner and therefore she has moved out of USA with the consent of the petitioner. (h) with the affidavit-in-reply a legal notice dated 2.3.2015, has been produced, a perusal of which shows that, it is the petitioner who has initiated legal proceedings for the custody of children. (h) with the affidavit-in-reply a legal notice dated 2.3.2015, has been produced, a perusal of which shows that, it is the petitioner who has initiated legal proceedings for the custody of children. No legal proceedings, in India or in USA have been initiated, at the hands of the respondent No. 2, for any of the grievances relating to matrimonial disputes. (i) It is denied, by the respondent No. 2, that the children are in the illegal custody of the respondent No. 2." 9. Mr. K.B. Paneri, learned advocate for the respondent, has extensively relied upon the contents of the reply and would contend that, but for the matrimonial dispute, at hand, which his client is amenable to settle, the respondent No. 2 is not willing to hand over the custody of the minor children Aadil and Aamir as it is not in the best interests and welfare of the children. That she cannot be compelled to return to USA as her life would be put in danger and, she would prefer to stay in Ahmedabad, that being her matrimonial home. Learned advocate Mr. Paneri has further contended that the respondent No. 2 is financially stable so as to maintain her minor children. 10. Learned advocate Mr. K.B. Paneri further contended that a Writ of Habeas Corpus cannot be sought for, by the petitioner as: "(a) the minor children Aadil and Aamir were not illegally detained by the respondent No. 2. (b) in accordance with section 9 of the Guardians and Wards Act, 1890, the petitioner's only remedy is to file an application thereunder before a competent court, instead of approaching this Court under Article 226 of the Constitution of India. (c) in accordance with section 13 of the Code of Civil Procedure, 1908, the decree or orders of the Foreign Courts cannot be enforced through such a writ as the case on hand falls under the exceptions of section 13 of the Code, inasmuch as the orders are without jurisdiction, obtained on misrepresentation of facts and not in compliance of principles of natural justice." Mr. Paneri further submitted that no orders can be made compelling the respondent No. 2 to hand over custody in accordance with the orders of the Circuit Court, DuPage Illinois, as it is not conducive to the best interests and to the welfare of the minor children and that even though the father may be a natural guardian of a minor son/sons, it cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. Mr. Paneri contended that in spite of the orders of the Circuit Court, DuPage, Illinois, it was not proper for this Court to allow the habeas corpus petition and direct the respondent No. 2 to hand over custody of the minor sons Aadil and Aamir. Mr. Paneri places heavy reliance on the case of the Apex Court in case of Sarita Sharma v. Sushil Sharma, (2000) 3 SCC 14 . 11. Various authorities have been cited at the Bar by learned Advocates for the respective parties, namely Shri Anil Malhotra for the petitioner and Shri K.B. Paneri for the respondent. "A. Citations on behalf of the petitioner: 1. Surya Vadanan v. State of Tamil Nadu [ AIR 2015 SC 2243 : (2015) 5 SCC 450 ]. 2. Arathi Bandi v. Bandi Jagadrakshaka Rao and others [ AIR 2014 SC 918 : (2013) 15 SCC 790 ]. 3. Mrs. Shilpa Aggarwal v. Aviral Mittal [ (2010) 1 SCC 591 ]. 4. Dr. V. Ravi Chandran v. Union of India and others [ (2010) 1 SCC 174 ]. 5. Nil Ratan Kundu v. Abhijit Kundu [2009 (supp) AIR (SC) 732]. 6. Special Criminal Application No. 6013 of 2015 decided on 27.11.2015. B. Citations on behalf of the respondent No. 2. 1. Sarita Sharma v. Sushil Sharma [ (2000) 3 SCC 14 ]. 2. Rajesh K. Gupta v. Ram Gopal Agarwala and others [ (2005) 5 SCC 359 ]. 3. Nil Ratan Kundu and another v. Abhijit Kundu [2009 (supp) AIR (SC) 732]. 4. Gaurav Nagpal v. Sumedha Nagpal [ (2009) 1 SCC 42 ]. 5. Surya Vadanan v. State of Tamil Nadu [ (2015) 5 SCC 450 ]." 12. 2. Rajesh K. Gupta v. Ram Gopal Agarwala and others [ (2005) 5 SCC 359 ]. 3. Nil Ratan Kundu and another v. Abhijit Kundu [2009 (supp) AIR (SC) 732]. 4. Gaurav Nagpal v. Sumedha Nagpal [ (2009) 1 SCC 42 ]. 5. Surya Vadanan v. State of Tamil Nadu [ (2015) 5 SCC 450 ]." 12. The legal position that emerges from the judgments cited at the Bar, is succinctly summarised, in the latest judgment of the Supreme Court, in the case of Surya Vadanan (supra) and is reiterated by a Division Bench of this Court in its judgment dated 27/11/2015 in Special Criminal Application No. 6013 of 2015. It will be appropriate refer to the law as it has evolved and settled in the case of Surya Vadanan (supra). 13. The facts before the Apex Court in the case of Surya Vadanan (supra) were, though, not same were somewhat similar. In the case before the Supreme Court, a father of minor children had sought custody of his wards so as to enable the foreign court to decide the issue of their custody. A Writ of Habeas Corpus was filed before the Madras High Court at the hands of the father Surya Vadanan, for the production of his children, which was refused to be entertained by the Madras High Court. It was the case of the petitioner before the Madras High Court that, the wife Mayura had illegal custody of the two daughters and that they may be produced in court and appropriate orders may be passed. The Madras High Court took the view that the welfare of the children (and not the legal right of either parties) was of paramount importance. It was held that since the children were in the custody of Mayura (the mother) and she was the legal guardian, it could not be said that the custody was illegal in any manner. Aggrieved by this the father had approached the Supreme Court, in appeal, against the judgment of the Madras High Court. 14. The Supreme Court, considered five of its comparatively recent judgments on the issue of child custody where a foreign court is concerned on the one hand and India or an Indian Court (or domestic court) is concerned on the other. 14. The Supreme Court, considered five of its comparatively recent judgments on the issue of child custody where a foreign court is concerned on the one hand and India or an Indian Court (or domestic court) is concerned on the other. Since, Shri Paneri was seeking to heavily rely on the judgment of Sarita Sharma v. Sushil Sharma (supra), it needs to be emphasised at this stage that the Court considered that too. 15.1 In the case of Sarita Sharma (supra) the Court noticed the following principles regarding custody of minor children: "(1) The modern theory of conflict of law recognises or at least prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. (2) Even though section 6 of the Hindu and Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of the minor son, that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. (3) The domestic court will consider the welfare of the child as of paramount importance and the order of the foreign court is only a factor to be taken into consideration. The Supreme Court observed that: "Considering all the aspects relating to the welfare of the children, we are of the opinion that in spite of the order of passed in the Court in USA it was not proper for the High Court to have allowed the Habeas Corpus writ petition and directed the appellant to hand over the custody of the children to the respondent and permit him to take them away to USA." 15.2 In the case of Shilpa Aggarwal v. Aviral Mittal and Anr. (supra), the Supreme Court observed that the following principles were applicable for deciding the case of the nature on hand: "(1) There are two contrasting principles of law, namely comity of courts and welfare of the child. (2) In the matters of custody of minor children, the sole and predominant criterion is the interest and welfare of the minor child. (supra), the Supreme Court observed that the following principles were applicable for deciding the case of the nature on hand: "(1) There are two contrasting principles of law, namely comity of courts and welfare of the child. (2) In the matters of custody of minor children, the sole and predominant criterion is the interest and welfare of the minor child. The Supreme Court on the facts of the case held that since the child was a foreign national and both parents worked for gain in U.K. and both had acquired permanent resident status in the U.K., since the foreign court had the most intimate contact with the child and the parents, the principle of "comity of courts" required that the foreign court would be the most appropriate court to decide which parent would be best suited to have custody to the child." 15.3 In the case of V. Ravichandran v. Union Of India (supra), the question that came up for consideration was "What should be the order in the facts and circumstances keeping in mind the interest of the child and the orders of the courts of the country of which child is a national." The Supreme Court made the following observations: "(1) The comity of nations does not require a court to blindly follow an order made by the foreign court. (2) Due weight should be given to the views formed by the courts of a foreign country of which the child is a national. The comity of courts demands not the enforcement of an order of a foreign court but its grave consideration. The weight and the persuasive effect of foreign judgment must depend on the facts and circumstances of each case. (3) The welfare of the child is the first and paramount consideration, whatever orders may have been passed by the foreign court. (4) The domestic court is bound to consider what is in the best interests of the child. Although the order of a foreign court will be attended to as of the circumstances to be taken into account, it is not conclusive, one way or the other. (5) One of the considerations that a domestic court must keep in mind is that there is no danger to the moral and physical health of the child in repatriating him or her to the jurisdiction of the foreign court. (5) One of the considerations that a domestic court must keep in mind is that there is no danger to the moral and physical health of the child in repatriating him or her to the jurisdiction of the foreign court. (6) While considering whether a child should be removed to the jurisdiction of the foreign court or not, the domestic court may either conduct a summary enquiry or an elaborate inquiry in this regard. In the event the domestic court conducts a summary inquiry, it would return the custody of the child to the country from which the child was removed unless such return can be shown to be harmful to the child. In the event the domestic court conducts an elaborate inquiry, the court could go into the merits as to where the permanent welfare of the child lay and ignore the order of the foreign court or treat the fact of removal of the child from another country as only one of the circumstances. An order that the child should be returned forthwith to the country from which he or she has been removed in the expectation that any dispute about his or her custody will be satisfactorily resolved in the courts of that country may well be regarded as being in the best interests of the child. (7) The modern theory of conflict of laws recognizes and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as circumstance as to where the child, whose custody is in issue, is brought, or for the time being lodged. The Supreme Court directed the repatriation of the child to jurisdiction of the foreign court subject to certain directions given in the judgment." 15.4 In the case of Ruchi Majoo v. Sanjeev Majoo. (supra), the Supreme Court framed three questions as follows: "(i) Whether the High Court was justified in dismissing the Petition for custody of the child on the ground that the Court at Delhi had no jurisdiction to entertain it. (supra), the Supreme Court framed three questions as follows: "(i) Whether the High Court was justified in dismissing the Petition for custody of the child on the ground that the Court at Delhi had no jurisdiction to entertain it. (ii) Whether it was right in declining exercise of jurisdiction on the principle of comity of courts: (emphasis supplied by this Court), and (iii) Whether the order granting interim custody of the child to Ruchi Majoo calls for any modification in terms of grant of visitation rights to the father pending disposal of the petition by the trial court." 15.5 In the case of Arathi Bandi v. Bandi Jagadrakshaka Rao (supra), the Supreme Court considering various principles laid down from time to time in different decisions rendered by this court with regard to the custody of a minor child, held that: "(1) It is the duty of courts in all countries to see that a parent doing wrong by removing a child out of the country does not gain any advantage of his or her wrong doing. (2) In a given case relating to the custody of the child, it may be necessary to have an elaborate inquiry with regard to the welfare of the child or a summary inquiry without investigating the merits of the dispute relating to the care of the child on the ground that such order is in the best interest of the child. (3) Merely because the child has been brought to India from a foreign country does not necessarily mean that the domestic court should decide the custody issue. It would be in accord with the principle of comity of courts to return the child to the jurisdiction of the foreign court from which he or she has been removed." 15.6 On consideration of the judgments as referred to hereinabove, the Supreme Court summarised the position of law in the case of Surya Vadanan (supra) as under: "46. The principle of the comity of courts is essentially a principle of self-restraint, applicable when a foreign court is seized of the issue of the custody of a child prior to the domestic court. There may be a situation where the foreign court though seized of the issue does not pass any effective or substantial order or direction. The principle of the comity of courts is essentially a principle of self-restraint, applicable when a foreign court is seized of the issue of the custody of a child prior to the domestic court. There may be a situation where the foreign court though seized of the issue does not pass any effective or substantial order or direction. In that event, if the domestic court were to pass an effective or substantial order or direction prior in point of time then the foreign court ought to exercise self-restraint and respect the direction or order of the domestic court (or vice versa), unless there are very good reasons not to do so. 47. From a review of the above decisions, it is quite clear that there is complete unanimity that the best interests and welfare of the child are of paramount importance. However, it should be clearly understood that this is the final goal or the final objective to be achieved - it is not the beginning of the exercise but the end. 48. Therefore, we are concerned with two principles in a case such as the present. They are: (i) The principle of comity of courts and (ii) The principle of the best interests and the welfare of the child. These principles have been referred to "contrasting principles of law" but they are not 'contrasting' in the sense of one being the opposite of the other but they are contrasting in the sense of being different principles that need to be applied in the facts of a given case. 49. What then are some of the key circumstances and factors to take into consideration for reaching this final goal or final objective? First, it must be appreciated that the "most intimate contact" doctrine and the "closest concern" doctrine of Surinder Kaur Sandhu are very much alive and cannot be ignored only because their application might be uncomfortable in certain situations. It is not appropriate that a domestic court having much less intimate contact with a child and having much less close concern with a child and his or her parents (as against a foreign court in a given case) should take upon itself the onerous task of determining the best interests and welfare of the child. It is not appropriate that a domestic court having much less intimate contact with a child and having much less close concern with a child and his or her parents (as against a foreign court in a given case) should take upon itself the onerous task of determining the best interests and welfare of the child. A foreign court having the most intimate contact and the closest concern with the child would be better equipped and perhaps best suited to appreciate the social and cultural milieu in which the child has been brought up rather than a domestic court. This is a factor that must be kept in mind. 50. Second, there is no reason why the principle of "comity of courts" should be jettisoned, except for special and compelling reasons. This is more so in a case where only an interim or an interlocutory order has been passed by a foreign court (as in the present case). In McKee which has been referred to in several decisions of this court, the Judicial Committee of the Privy Council was not dealing with an interim or an interlocutory order but a final adjudication. The applicable principles are entirely different in such cases. In this appeal, we are not concerned with a final adjudication by a foreign court - the principles for dealing with a foreign judgment are laid down in section 13 of the Code of Civil Procedure. In passing an interim or an interlocutory order, a foreign court is as capable of making a prima facie fair adjudication as any domestic court and there is no reason to undermine its competence or capability. If the principle of comity of courts is accepted, and it has been so accepted by this court, we must give due respect even to such orders passed by a foreign court. The High Court misdirected itself by looking at the issue as a matter of legal rights of the parties. Actually, the issue is of the legal obligations of the parties, in the context of the order passed by the foreign court. 51. If an interim or an interlocutory order passed by a foreign court has to be disregarded, there must be some special reason for doing so. Actually, the issue is of the legal obligations of the parties, in the context of the order passed by the foreign court. 51. If an interim or an interlocutory order passed by a foreign court has to be disregarded, there must be some special reason for doing so. No doubt we expect foreign courts to respect the orders passed by courts in India and so there is no justifiable reason why domestic courts should not reciprocate and respect orders passed by foreign courts. This issue may be looked at from another perspective. If the reluctance to grant respect to an interim or an interlocutory order is extrapolated into the domestic sphere, there may well be situations where a Family Court in one State declines to respect an interim or an interlocutory order of a Family Court in another State on the ground of best interests and welfare of the child. This may well happen in a case where a person ordinarily resident in one State gets married to another person ordinarily resident in another State and they reside with their child in a third State. In such a situation, the Family Court having the most intimate contact and the closest concern with the child (the court in the third State) may find its orders not being given due respect by a Family Court in the first or the second State. This would clearly be destructive of the equivalent of the principle of comity of courts even within the country and, what is worse, destructive of the rule of law. 52. What are the situations in which an interim or an interlocutory order of a foreign court may be ignored? There are very few such situations. It is of primary importance to determine, prima facie, that the foreign court has jurisdiction over the child whose custody is in dispute, based on the fact of the child being ordinarily resident in the territory over which the foreign court exercises jurisdiction. If the foreign court does have jurisdiction, the interim or interlocutory order of the foreign court should be given due weight and respect. If the jurisdiction of the foreign court is not in doubt, the "first strike" principle would be applicable. If the foreign court does have jurisdiction, the interim or interlocutory order of the foreign court should be given due weight and respect. If the jurisdiction of the foreign court is not in doubt, the "first strike" principle would be applicable. That is to say that due respect and weight must be given to a substantive order prior in point of time to a substantive order passed by another court (foreign or domestic). 53. There may be a case, as has happened in the present appeal, where one parent invokes the jurisdiction of a court but does not obtain any substantive order in his or her favour and the other parent invokes the jurisdiction of another court and obtains a substantive order in his or her favour before the first court. In such an event, due respect and weight ought to be given to the substantive order passed by the second court since that interim or interlocutory order was passed prior in point of time. As mentioned above, this situation has arisen in the present appeal - Mayura had initiated divorce proceedings in India before the custody proceedings were initiated by Surya in the U.K. but the foreign court passed a substantive order on the custody issue before the domestic court. This situation also arose in Ruchi Majoo where Ruchi Majoo had invoked the jurisdiction of the domestic court before Rajiv Majoo but in fact Rajiv Majoo obtained a substantive order from the foreign court before the domestic court. While the substantive order of the foreign court in Ruchi Majoo was accorded due respect and weight but for reasons not related to the principle of comity of courts and on merits, custody of the child was handed over to Ruchi Majoo, notwithstanding the first strike principle. 54. As has been held in Arathi Bandi a violation of an interim or an interlocutory order passed by a court of competent jurisdiction ought to be viewed strictly if the rule of law is to be maintained. No litigant can be permitted to defy or decline adherence to an interim or an interlocutory order of a court merely because he or she is of the opinion that that order is incorrect - that has to be judged by a superior court or by another court having jurisdiction to do so. No litigant can be permitted to defy or decline adherence to an interim or an interlocutory order of a court merely because he or she is of the opinion that that order is incorrect - that has to be judged by a superior court or by another court having jurisdiction to do so. It is in this context that the observations of this court in Sarita Sharma and Ruchi Majoo have to be appreciated. If as a general principle, the violation of an interim or an interlocutory order is not viewed seriously, it will have widespread deleterious effects on the authority of courts to implement their interim or interlocutory orders or compel their adherence. Extrapolating this to the courts in our country, it is common knowledge that in cases of matrimonial differences in our country, quite often more than one Family Court has jurisdiction over the subject matter in issue. In such a situation, can a litigant say that he or she will obey the interim or interlocutory order of a particular Family Court and not that of another? Similarly, can one Family Court hold that an interim or an interlocutory order of another Family Court on the same subject matter may be ignored in the best interests and welfare of the child? We think not. An interim or an interlocutory is precisely what it is - interim or interlocutory - and is always subject to modification or vacation by the court that passes that interim or interlocutory order. There is no finality attached to an interim or an interlocutory order. We may add a word of caution here - merely because a parent has violated an order of a foreign court does not mean that that parent should be penalized for it. The conduct of the parent may certainly be taken into account for passing a final order, but that ought not to have a penalizing result." 16. Learned Advocate Mr. K.B. Paneri pressed into service the case of Sarita Sharma (supra) to canvass a proposition that in spite of the order of a foreign court a High Court should not allow the Writ of Habeas Corpus and hand over the custody to the father as it was not in the welfare of the children. Learned Advocate Mr. K.B. Paneri pressed into service the case of Sarita Sharma (supra) to canvass a proposition that in spite of the order of a foreign court a High Court should not allow the Writ of Habeas Corpus and hand over the custody to the father as it was not in the welfare of the children. He further submitted that unless a full and a thorough inquiry is held no Writ can be issued and the only remedy is to approach a Court which can hold such an Inquiry. 17. This submission of Mr. Paneri is without merit and has to negated as, on facts of the case, the custody was not given to the father, Sushil Sharma on the ground that he was an alcoholic. Moreover on considering the judgment in the case of Sarita Sharma (supra) in the subsequent decision of Surya Vadanan (supra), the Supreme Court observed that the Court in the case of Sarita Sharma (supra) did not make any reference at all to the principle of comity of courts nor gave any importance to the fact that the modern theory of conflict of laws recognizes and prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Ordinarily in cases relating to custody, the law of that place must govern which has the closest concern with the well-being and the welfare of the offsprings of marriage. 18. On the question of law therefore it is no longer res integra that, in the case of Surya Vadanan (supra) the Supreme Court recognised the principle of comity of courts which is applicable when a foreign court is seized of the issue of custody of a child prior to the domestic court (emphasis supplied), and therefore observed that considering the twin principles of comity of courts and the principle of the best interests and welfare of the child and keeping in view the "most intimate contact" doctrine and the "closest concern" doctrine it may be appropriate that the foreign court having the most intimate contact and the closest concern with the child is better equipped and perhaps best suited to appreciate the social and cultural milieu in which the child has been brought up rather than a domestic court. The Supreme Court further observed that the principle of "comity of courts" should not be jettisoned except for special and compelling reasons. This is more so in a case where only an interim order or an interlocutory order has been passed by a foreign court. The principle of "comity of courts" enjoins upon domestic courts to give due respect to such orders of foreign courts and in absence of special reasons an interim order of the foreign court ought not to be disregarded. On the face of a pre-existing order of a foreign court the domestic court should desist from conducting an elaborate inquiry as a matter of course and in absence of special reasons. 19. On going through the pleadings in the present petition and the affidavit-in-reply filed by the respondent No. 2 and having gone through the order of the Circuit Court, we find that there is no final determination on the issue of custody and what the foreign court has required is that the custody be given to the petitioner and the issue of visitation rights is reserved until further orders and even the order of child support is reserved for future consideration. In other words we cannot presume that the foreign court will not come to an equitable decision which would be in the best interest and welfare of the child as that court is best equipped, keeping the aforesaid twin principles of comity of courts and "closest concern" doctrine. The submission of Shri Paneri therefore that the petition cannot be entertained in accordance with the exceptions of section 13 of the Code of Civil Procedure, 1908, is also misconceived and deserves to be rejected. Moreover there are no special and compelling reasons why the interim order of the Circuit Court ought to be jettisoned. 20. For the following reasons we are of the opinion that the principles laid down by the Apex Court, in the case of Surya Vadanan (supra) squarely apply to the facts of this case. "(A) Both the petitioner and the respondent No. 2 are naturalised citizens of USA and so also their minor sons Aadil and Aamir. They have been residents of DuPage, Illinois, USA and are born and brought up in Illinois. Illinois has been the matrimonial home of the petitioner and the respondent No. 2. "(A) Both the petitioner and the respondent No. 2 are naturalised citizens of USA and so also their minor sons Aadil and Aamir. They have been residents of DuPage, Illinois, USA and are born and brought up in Illinois. Illinois has been the matrimonial home of the petitioner and the respondent No. 2. (B) The respondent No. 2, has moved out of the matrimonial home at DuPage, Illinois, USA, with the minor sons Aadil and Aamir, admittedly, without any support/consent of the petitioner/father of the minor children. (C) The petitioner and the father, have made several attempts to reconcile the matrimonial differences by flying down to India and arrange for the reunion of the family in USA, which have been resisted by the respondent No. 2. (D) The respondent No. 2, has, though, made allegations of matrimonial discord, arising out of the marriage and allegations of domestic violence, no legal proceedings have been initiated at her instance in the Indian Courts, whereas, the petitioner has, instituted proceedings, at the first available opportunity, in the foreign court, for custody of the minor children and an order has been made and therefore, a pre-existing order of a foreign court exists in favour of the petitioner and taking into consideration the principle of "most intimate contact" doctrine and the "closest concern" doctrine coupled with the welfare and best interests of the children, it cannot be ignored that it is the foreign court i.e. the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois, which is the court of intimate contact and closest concern, in absence of any pre-existing orders of a domestic court in India, to take upon itself the task of the best interests and welfare of the child. The Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois is in our opinion the Court of "closest concern" and also a court which can take care of the best interests and welfare of the child and keeping in view the principle of "comity of courts", in our opinion, is the only competent court which can consider the final goal or the final objective to be achieved that is what is the best interests and welfare of the child. Moreover there are no compelling or special reasons not to respect the interim order of the foreign court. Moreover there are no compelling or special reasons not to respect the interim order of the foreign court. This Court therefore need not undertake the onerous task of embarking into holding of a detailed inquiry which is entirely within the domain of the foreign court. (E) The contention on behalf of the respondent No. 2 that the petitioner should file an application under section 9 of the Guardians and Wards Act, 1890 is also rejected as misconceived. The word "ordinary residence" as defined in the said section cannot be construed in a manner where the residence is by compulsion or it cannot have the same meaning as "the residence at the time of the application" and therefore the contention that the since the minors Aadil and Aamir are residing in Ahmedabad at the moment, the application under section 9 of the Guardian and Wards Act, 1890 is the only remedy, is also without any merit." 21. Therefore, in exercise of powers under Article 226, in a writ of Habeas Corpus, this Court deems it fit to hand over the custody of the minor children Aadil and Aamir to the petitioner forthwith without conducting an elaborate inquiry. Facts in the petition and the conduct of the respondent No. 2, coupled with the twin principles of comity of courts and best interests and welfare of the child, and in view of the fact that it is the Circuit Court that is the court which has the "closest concern" and having the most intimate contact, leave us no alternative, but to pass orders, and grant the relief, as prayed for, by the petitioner. 22. Negating the objections, that, the minor children Aadil and Aamir have not been illegally detained or are in illegal custody of the respondent No. 2, and also overruling the preliminary objection regarding the maintainability of the petition in view of the provisions of section 9 of the Guardians and Wards Act, 1890, and that of unenforceability in accordance with section 13 of the Code of Civil Procedure, we allow this petition and issue the following directions: "(1) The custody of minor children Aadil and Aamir along with the current U.S. Passport of Aamir be handed over to the petitioner and they may be allowed to go to Illinois, USA, in accordance with the directions of the Circuit Court of Illinois, dated 29/10/2015 and 26/2/2016. The respondent No. 2 (if she so wishes) can accompany the minor children Aadil and Aamir and participate in the proceedings before the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois, USA. (2) The petitioner will pay Air Fare for purchase of tickets for travel of the minor children Aadil and Aamir and the respondent No. 2 (if she so wishes to travel to USA). The petitioner shall also make all necessary arrangements for the respondent No. 2, for her comfortable stay, in their matrimonial home, or such other place in and around DuPage County, Illinois, where she feels safe. Such arrangements shall be made by the petitioner for the respondent No. 2 only if she wishes to accompany the petitioner and the minor children Aadil and Aamir to the matrimonial home at DuPage County, Illinois. (3) The petitioner, subject to further orders that may be passed by the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois, USA shall make all necessary financial arrangements for the respondent No. 2 including legal expenses that she may incur in contesting the proceedings before the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois, USA. (4) In the event, the respondent No. 2 does not comply with the directions given by us, the petitioner shall be entitled to take minor children Aadil and Aamir to USA with him for further proceedings in the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois, USA. To enable this, the respondent No. 2 Mrs. Lubayna Attarwala will deliver to the petitioner, passport of the minor child Aamir." 23. The Special Criminal Application is accordingly allowed with the aforesaid directions. Rule is made absolute accordingly with no order as to costs.