ORDER : 1. This petition for a writ of Habeas corpus is filed by Sri Pavan Srikanth Reddy, through his GPA holder and brother-in-law Mr.Narendra Babu, seeking a direction against the third respondent Smt.Shilpa G.Reddy, wife of the petitioner (since divorced) to handover custody of the two minor children namely Reshab Reddy and Lishica Reddy to him. 2. As is evident from the order dated 16.06.2016 passed by the Trial Court Probate and Family Court Department, Common Wealth of Massachusetts, Berkshire Division, in Docket No.16D0162, a case was instituted by Pavan Reddy against his wife Shilpa Reddy. Order passed by the Court at Massachusetts in the aforesaid case reads as under: “After case management conference held on June 16, 2016, attended by the plaintiff and his attorney [the defendant failed to appear], the Court finds that the emergent nature of this case remains. The defendant, Shilpa Reddy (“Mother”) has removed the parties’ children from the Commonwealth of Massachusetts to India without the plaintiff, Pavan Reddy’s (“Father”) consent. He has had no contact with his children since she took the children out of the country. This conduct continues to present a danger to the children. Mother has refused service of this action. Her attempt to delay this proceeding by refusing service justifies this Court to enter the following further emergency Order: IT IS ORDERED THAT: 1. Pavan Reddy (“Father”) shall have sole legal custody of the minor children, namely: Reshab Reddy born October 13, 2007 and Lishica Reddy born October 29, 2012. 2. All other orders remain in full force and effect. 3. This matter is scheduled for review at 8:30 a.m. on July 21, 2016. 3. It is relevant to notice that dispute started between the husband and wife as a result of a proceeding instituted by Shilpa Reddy against her husband Pavan Reddy in Docket No.14R0034 before the Trial Court at Massachusetts seeking abuse prevention order. In the said case on 18.04.2016, husband Pavan Reddy was directed as follows: “(1) Ordered not to abuse the plaintiff by harming, threatening or attempting to harm the Plaintiff physically or by placing the plaintiff in fear of imminent serious physical harm, etc. (2) Not to contact the plaintiff, in person, by telephone, in writing, electronically or otherwise etc. (3) Ordered to immediately leave and stay away from the plaintiff’s residence…..” 4. (2) Not to contact the plaintiff, in person, by telephone, in writing, electronically or otherwise etc. (3) Ordered to immediately leave and stay away from the plaintiff’s residence…..” 4. So far as the custody of the two children Reshab Reddy and Lishica Reddy was concerned, the Court awarded physical custody of the children in favour of plaintiff Shilpa Reddy. Subsequently, on 19.04.2016 the said order was modified after hearing both the parties. Writ petitioner herein Pavan Reddy, father of the minor children was allowed to visit them every weekend on Saturdays from 9.00 a.m. to 6.00 p.m. The matter was adjourned to 15.07.2016. The aforesaid order passed by the Trial Court of Masachussets is produced along with the writ petition at Annexure ‘C’. 5. Petitioner alleges that on 02.05.2016 Shilpa Reddy-respondent No.3 herein fled away from America along with her two children without intimating the Court at Masachussets where the case was pending and without intimating the petitioner-father of the minor children. This made the petitioner move the Trial Court at Masachussets. On 16.06.2016, the Court passed an order which has been extracted above at the beginning of this order, thereby ordering that Pavan Reddy shall have the sole legal custody of the minor children. This order is produced by the writ petitioner at Annexure ‘D’. Thus it emerges that the Trial Court of Masachussets in United States, having taken note of the emergent nature of the case emanating from the conduct of the third respondent-Shilpa, who had removed the children from the Common Wealth of Massachussets to India without consent of her husband thereby depriving the father of the company and contact with the minor children awarded physical custody of the children to the father. The Court also took note of the fact that conduct of the third respondent presented danger to the children tantamounting to delay the proceeding pending before the said Court. 6. The Court also took note of the fact that conduct of the third respondent presented danger to the children tantamounting to delay the proceeding pending before the said Court. 6. It further transpires that Pavan Reddy moved the Court at Masachussets seeking divorce and as per the order dated 04.05.2017 another order in the same case was passed in Docket No.16D0162 which reads as under: “All persons interested having been notified in accordance with the law, and after hearing, it is adjudged nisi that a divorce from the bond of matrimony be granted the said plaintiff for the cause of irretrievable breakdown of the marriage as provided by G.L.c. 208, §1B, and that upon and after the expiration of ninety days from the entry of this judgment, it shall become and be absolute unless, upon the application of any person within such period, the Court shall otherwise order. It is further ordered that: 1. Pavan Reddy shall have the sole legal and sole physical custody of the minor children, namely: Reshab Reddy born October 13, 2007 and Lishica Reddy born October 29, 2012. Shilpa Reddy shall promptly return the children to Pavan Reddy’s care and custody. 2. No order for child support shall enter at this time. 3. Neither party shall pay alimony to the other party. 4. Each party shall be solely responsible for his/her medical expenses. 5. Each party shall retain sole ownership of any and all personal property, both tangible and intangible presently in his/her control or possession. 6. Each party shall be solely responsible for his or her own debts and liabilities and shall hold the other harmless there from. 7. Shilpa Reddy is divested of title to the real estate located at 345 Dalton Division Road, Dalton, MA as described in a deed recorded in Book 4925, Page 259 in the Berkshire Middle District Registry of Deeds. Pursuant to an Order of even date, Pavan S.Reddy is authorized to execute a deed on behalf of Shilpa G. Reddy whereby all of Shilpa G.Reddy’s right, title and interest is conveyed to Pavan S.Reddy. Pavan S.Reddy shall be entitled to retain, free of any claim by Shilpa G.Reddy any and all proceeds generated from the sale of the real estate. ALL UNTIL FURTHER ORDER OF THE COURT.” 7. Pavan S.Reddy shall be entitled to retain, free of any claim by Shilpa G.Reddy any and all proceeds generated from the sale of the real estate. ALL UNTIL FURTHER ORDER OF THE COURT.” 7. A copy of this order is made available to the Court by producing the same along with a memo by the learned Counsel for the petitioner. 8. It is contended by the learned Counsel for the petitioner that the two minor children are the citizens of United States of America where they have been born. That petitioner Pavan Srikanth Reddy, father of the minor children has been settled in United States of America since long and has been well placed there: if the children are allowed to be forcibly retained by their mother at Bangalore in India their future in terms of education, upbringing and all other aspects would get affected as the children would develop roots here making it difficult for them to settle in their native country viz., United States of America. It is further urged that father is capable of providing quality education to his children ensuring their development in all respects as he is economically sound, on the other hand, the mother of the minor children does not have any permanent financial support or resource to look after the children by providing good and quality education. 9. As regards the legal aspect, learned Counsel for the petitioner places reliance on the judgment in the case of DR.V.RAVI CHANDRAN VS. UNION OF INDIA & ORS. 2010 AIR SCW 192. He urges that keeping in mind the interest of the child and the orders of the Courts of the country of which the child is a national whereunder their custody has been ordered to be handed over to the father/writ petitioner and also the conduct of the mother-respondent No.3 herein who has acted contrary to the directions issued by the Court and has illegally and unauthorisedly come down to India with the minor children without taking consent of the husband and without seeking any direction in that regard from the Court where the case was pending regarding custody the petition deserves to be allowed. 10. Reliance is also placed by the learned Counsel for the petitioner on the judgment in the case of ARATHI BANDI VS. BANDI JAGADRAKSHAK RAO AND OTHERS VS. 10. Reliance is also placed by the learned Counsel for the petitioner on the judgment in the case of ARATHI BANDI VS. BANDI JAGADRAKSHAK RAO AND OTHERS VS. STATE OF ANDHRA PRADESH AND ANOTHER (2013) 15 SCC 790 to urge that the ratio laid down by the Apex Court in the case of Dr.V.Ravi Chandran has been reiterated subsequently by the Apex Court in Aarthi Bandi case. Reliance is also placed on the judgment of the Apex Court in the case of SHILPA AGGARWAL VS. AVIRAL MITTAL & ANR in Criminal Appeal No.2357/2009 disposed of on 02.02.2010 in the same connection. 11. Per contra, Sri C.R.Gopalaswamy, learned Counsel appearing for the third respondent strenuously urges that the child was not removed from the jurisdiction of the Masachussets Court in United States of America contrary to any specific direction issued by the Court there. He urges that it was only after respondent No.3 came down to India along with her two children, petitioner instituted fresh proceedings seeking divorce on the ground that marriage between them had been irretrievably broken down and it was in that proceeding ‘temporary order’ has been obtained in docket No.16D0162 vide Annexure ‘C2’ to the effect that petitioner Pavan Reddy shall enjoy joint legal custody of the two minor children and that respondent No.3 herein shall return the children to the Common Wealth of Masachussetts so that parties’ rights to parent the children could be decided there. 12. It is further urged by him that a subsequent order dated 16.06.2016 obtained in the said case to the effect that Pavan Reddy shall have sole legal custody of the minor children was passed without hearing respondent No.3 and behind her back. It is therefore urged by him that respondent No.3 has not acted in violation of any specific order of the foreign Court in bringing her children to India. It is further submitted that respondent No.3 is not in a position to go to United States of America on her own because petitioner had obtained an exparte order of divorce dissolving their marriage. 13. It is also urged by the learned Counsel that both the children have been staying in India along with their mother and grandparents for the last two years and they have adjusted to the present atmosphere: they have been taken care of by providing quality education. 13. It is also urged by the learned Counsel that both the children have been staying in India along with their mother and grandparents for the last two years and they have adjusted to the present atmosphere: they have been taken care of by providing quality education. In this connection, he has invited attention of the Court to the fee certificate issued by the School by name ‘Silver Oak School’ to demonstrate that a sum of Rs.1,04,000/- has been paid as tuition fee in the first term apart from paying a sum of Rs.25,000/- as refundable deposit. He urges that this fee receipt pertains to admission to Grade-IV of Reshab Aarush Reddy. 14. Placing reliance on the judgment in the case of NITHYA ANAND RAGHAVAN VS. STATE (NCT OF DELHI) (2017) 8 SCC 454 , Sri C.R.Gopalaswamy, learned Counsel urges that in a matter like this, while examining the delicate issue involving the welfare of the children, the overriding consideration for the Court must be the welfare of the child and nothing precludes the Indian Courts from considering the question of merits, having regard to the facts and circumstances of the case and the interest of the children even though that may tantamount to passing an order contrary to the direction issued by the foreign Court. 15. In the background of the above contentions and keeping in mind the facts and circumstances as adverted to above, we have carefully examined the entire matter. What emerges from the narration of the facts made above is that the two children are minors: (1) Reshab Reddy born on 13.10.2007 is now aged about 10 years five months and (2) Lishica Reddy born on 29.10.2012 is now aged 5 years 4 months. Fee receipt produced before the Court discloses that Reshab Reddy is admitted to ‘Silver Oak School’ and was studying in IV Grade for the academic year 2016-2017. It is now informed to the Court by the learned Counsel for the third respondent that he is presently studying in the same School in V Grade. 16. On instructions from the third respondent who is the mother, learned Counsel for the third respondent submits that the girl child Lishica Reddy is now attending U.K.G. at Brook Field High School, Electronic City, Bangalore. 16. On instructions from the third respondent who is the mother, learned Counsel for the third respondent submits that the girl child Lishica Reddy is now attending U.K.G. at Brook Field High School, Electronic City, Bangalore. It is pointed out to the Court that the third respondent is carrying on her profession as a Dentist and she is staying along with her parents at Bangalore. We have no reason to believe that there is any danger to the safety, security and well being of the children in the hands of their mother and their grandparents. On the other hand, prima facie, we find that both the tender aged children have been staying at Bangalore for the past two years and have been looked after by their mother and grand parents. 17. Without holding a detailed enquiry by providing opportunity to the parties to lead evidence, this Court cannot come to a conclusion that interest of the minors cannot be better served in the hands of their mother and that their prospects of better education and full and satisfactory development can take place only under the care and guidance of the father. Therefore, we do not wish to express any opinion on this aspect except saying that the present position of the children cannot be regarded as detrimental to their safety and security. What would be more desirable for the welfare of the minors, in the facts and circumstances of the case particularly, having regard to the fact that both the children have been born in United States and are said to be citizens of United States, in the background of petitioner/father of minor children being in United States with a secured job, is a matter to be decided after providing proper and fair opportunity to both parties in an appropriate proceeding. 18. As rightly contended by the learned Counsel for respondent No.3 when the children were brought to India by the third respondent, there was no restraint order against her from moving out of India. She has, no doubt, not taken the consent of the father of the minor children. It can also be said that the order passed by the Trial Court at Masachussets directing visitation rights to the petitioner-father to visit his children has been frustrated by the action of the third respondent in removing them from the jurisdiction of that Court. She has, no doubt, not taken the consent of the father of the minor children. It can also be said that the order passed by the Trial Court at Masachussets directing visitation rights to the petitioner-father to visit his children has been frustrated by the action of the third respondent in removing them from the jurisdiction of that Court. But, that by itself cannot be a ground to issue a direction in this writ petition to the mother to take back her two children to United States of America. 19. The Apex Court in the case of NITHYA ANAND RAGHAVAN AND ANOTHER referred to supra has laid down that even in a case where child is removed from a foreign country by the biological mother, merely because an order of a foreign Court directing mother to produce the child before it has been passed, the custody of the child with the mother would not become unlawful per se. In such a case, the father can be asked to resort to substantive prescribed remedy for getting custody of the child. It has been further held in the said case that, any such order passed by the foreign Court directing production of the child before it, cannot be made a basis for issuance of a writ of Habeas Corpus to enforce such a direction issued by the foreign Court so as to convert jurisdiction of High Court into that of an executing Court and that the writ petitioner could take recourse to other remedy. 20. We may usefully refer to the observations made and law laid down in paragraphs-40 and 41 in Nithya Anand Raghavan’s case after referring to various precedents on the point, which reads as under: 40. The Court has noted that India is not yet a signatory to the Hague Convention of 1980 on “Civil Aspects of International Child Abduction”. As regards the non-Convention countries, the law is that the Court in the country to which the child has been removed must consider the question on merits bearing the welfare of the child as of paramount importance and reckon the order of the foreign Court as only a factor to be taken into consideration, unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare. In exercise of summary jurisdiction, the Court must be satisfied and of the opinion that the proceedings instituted before it was in close proximity and filed promptly after the child was removed from his/her native state and brought within its territorial jurisdiction, the child has not gained roots here and further that it will be in the child’s welfare to return to his native state because of the difference in language spoken or social customs and contacts to which he/she has been accustomed or such other tangible reasons. In such a case the Court need not resort to an elaborate inquiry into the merits of the paramount welfare of the child but leave that inquiry to the foreign Court by directing return of the child. Be it noted that in exceptional case the Court can still refuse to issue direction to return the child to the native state and more particularly in spite of a pre-existing order of the foreign Court in that behalf, if it is satisfied that the child’s return may expose him to a grave risk of harm. This means that the Courts in India, within whose jurisdiction the minor has been brought must “ordinarily” consider the question on merits, bearing in mind the welfare of the child as of paramount importance whilst reckoning the pre-existing order of the foreign Court if any as only one of the factors and not get fixated therewith. In either situation be it a summary inquiry or an elaborate inquiry- the welfare of the child is of paramount consideration. Thus, while examining the issue the Courts in India are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. We are in respectful agreement with the aforementioned exposition. 41. Notably, the aforementioned exposition has been quoted with approval by a three-judge bench of this Court in Dr. V. Ravi Chandran (2) as can be discerned from paragraph 27 of the reported decision. We are in respectful agreement with the aforementioned exposition. 41. Notably, the aforementioned exposition has been quoted with approval by a three-judge bench of this Court in Dr. V. Ravi Chandran (2) as can be discerned from paragraph 27 of the reported decision. In that, after extracting paragraphs 28 to 30 of the decision in Dhanwanti Joshi case, the three-Judge bench observed thus: [V.Ravi Chandran (2) case, SCC p.194] “27…..…However, in view of the fact that the child had lived with his mother in India for nearly twelve years, this Court held that it would not exercise a summary jurisdiction to return the child to the United States of America on the ground that its removal from USA in 1984 was contrary to the orders of US courts. It was also held that whenever a question arises before a Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest of the minor.” (emphasis supplied) Again in paragraphs 29 and 30, the three- Judge Bench observed thus:- (SCC pp.195-96) “29. While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the Court where the parties had set up their matrimonial home, the Court in the country to which the child has been removed must first consider the question whether the Court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to the child’s welfare be investigated in a Court in his own country. Should the Court take a view that an elaborate enquiry is necessary, obviously the Court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of the child including stability and security, loving and understanding care and guidance and full development of the child’s character, personality and talents. While doing so, the order of a foreign Court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case. 30. However, in a case where the Court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the Court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the Court may leave the aspects relating to the welfare of the child to be investigated by the Court in his own native country as that could be in the best interests of the child. The indication given in McKee v. McKee that there may be cases in which it is proper for a Court in one jurisdiction to make an order directing that a child be returned to a foreign jurisdiction without investigating the merits of the dispute relating to the care of the child on the ground that such an order is in the best interests of the child has been explained in L. (Minors), In re and the said view has been approved by this Court in Dhanwanti Joshi. Similar view taken by the Court of Appeal in H. (Infants), in re has been approved by this Court in Elizabeth Dinshaw.” (emphasis supplied) 21. It thus emerges that the Court in the country to which the child has been removed must consider the question on merits bearing in mind the welfare of the child as of paramount importance and reckoning the order of the foreign Court as only a factor to be taken into consideration. 22. In the facts of the present case, as already stated above, the children have been staying in India for the last two years. They are admitted to Schools and are under the care and custody of their mother and grandparents. There does not appear to be any immediate problem regarding their physical, emotional or psychological growth or in the matter of their education and well being so that this Court in exercise of the writ jurisdiction has to immediately interfere in the matter keeping in mind the welfare of the children. There does not appear to be any immediate problem regarding their physical, emotional or psychological growth or in the matter of their education and well being so that this Court in exercise of the writ jurisdiction has to immediately interfere in the matter keeping in mind the welfare of the children. However, we must hasten to add that these observations will not in any manner come in the way of the right of the petitioner to have the custody of his children by initiating appropriate proceeding as permissible in law. 23. The other judgments on which the learned counsel for the petitioner has placed reliance do not support him in the light of the law laid down by the Apex Court in the case of Nithya Anand Raghavan. 24. Subject to the above observations, this writ petition is dismissed. I.A.No.1/2016 is dismissed as not pressed.