Meera Davis v. Jeen Thomas

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 21ST DAY OF AUGUST 2017/30TH SRAVANA, 1939 OP (FC).No.426 of 2017 (R) ---------------------------- PETITIONER/PETITIONER/PETITIONER: -------------------------------- MEERA DAVIS AGED 34 YEARS, W/O. JEEN THOMAS, POONELIL(H), PULLUVAZHY P.O, PERUMBAVOOR, ERNAKULAM. BY ADVS.SRI.K.RAMACHANDRAN SRI.T.P.PRADEEP SRI.S.SREEDEV SRI.P.K.SATHEES KUMAR RESPONDENT/RESPONDENT/RESPONDENT: -------------------------------- JEEN THOMAS AGED 38 YEARS, S/O. THOMAS, MENAMPADATH HOUSE, KURAVILANGAD P.O, KOTTAYAM - 686 633. BY ADV. SRI.SIJI ANTONY THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 17/08/2017, THE COURT ON 21-08-2017 DELIVERED THE FOLLOWING: OP (FC).No. 426 of 2017 (R) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1 TRUE COPY OF THE FIRST PAGE OF THE PASSPORT OF MISS. NEHA MARIA JEEN. EXHIBIT P1(A) TRUE COPY OF THE BIRTH CERTIFICATE DTD. 02.07.2014 OF MASTER STEVE JEEN. EXHIBIT P2 TRUE COPY OF THE ORIGINAL PETITION FILED BY THE PETITIONER IN G(OP) 409/2017 ON THE FILES OF FAMILY COURT, KOTTAYAM AT PALA. EXHIBIT P3 TRUE COPY OF THE I.A 546/2017 IN GO(P) 409/2017 ON THE FILES OF FAMILY COURT, KOTTAYAM AT PALA. EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXT.P3. EXHIBIT P5 TRUE COPY OF I.A 554/2017 IN G(OP) 409/2017 ON THE FILES OF FAMILY COURT, KOTTAYAM AT PALA. EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXT.P5 EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT FILED BY THE MOTHER OF THE PETITIONER SMT.LISSY DEVASSY IN G(OP) 409/2017 ON THE FILES OF FAMILY COURT, KOTTAYAM AT PALA. EXHIBIT P8 TRUE COPY OF THE I.A 555/2017 IN G(OP) 409/2017 ON THE FILES OF FAMILY COURT, KOTTAYAM AT PALA. EXHIBIT P9 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXT.P8. EXHIBIT P10 TRUE COPY OF THE APPLICATION FILED BY THE RESPONDENT IN G(OP) 409/2017 ON THE FILES OF FAMILY COURT, KOTTAYAM AT PALA. EXHIBIT P11 TRUE COPY OF THE COMMON ORDER DATED 25.07.2017 IN I,.A 546/2017 AND I.A 554/2017 IN G(OP) 409/2017 OF FAMILY COURT, KOTTAYAM AT PALA. EXHIBIT P12 TRUE COPY OF THE LETTER DATED 24.07.2017 ISSUED BY THE PRINCIPAL OF SCOIL BHRIDE, CLANE KILDARA, REPUBLIC OF IRELAND. RESPONDENT'S EXHIBITS --------------------- NIL TRUE COPY PS TO JUDGE ## **A.M.SHAFFIQUE, J & K.P.JYOTHINDRANATH, J** *** * * * * * * * * * * * * * * *** O.P.(FC) No.426 of 2017 ---------------------------------------- Dated this the 21[st] day of August 2017 ## **J U D G M E N T** ## **Shaffique, J** This original petition is filed by the petitioner in O.P.No.409/2017, pending before the Family Court, at Pala, challenging order dated 25/07/2017 in I.A.Nos.554/2017. 2. The short facts arising in the matter are as under: The petitioner married the respondent on 26/10/2009 as per Christian customary rites and rituals. Petitioner, at the relevant time, was working as a Nurse in the Republic of Ireland. After marriage, the couple went to Ireland and they were residing there until recently. Two children were born to them in their wedlock. The eldest child, Neha Maria Jeen is now about 7 years and the second child, Master Steve Jeen is now three years. The children were born and brought up in Ireland. The eldest child was undergoing her studies in Ireland. During vacation alone, O.P(FC) No.426/2017 2 they used to come to India. 3. Petitioner has a contention that she was not being properly treated by the respondent. Though he is a post graduate in Information Technology, he did not wish to go for any employment and all the expenses were being met by her. It is her contention that the respondent, on 29/04/2017, had come to India along with their children and is now residing at his house in India. She alleges that children were forcibly taken by the respondent from Ireland against her will. She further alleges that during 2012 also, he had come to India with the two year old daughter without informing her and thereafter, at the intervention of parents and relatives, he had returned back. It is further contended that the children are Irish citizens and the elder child is studying at Scoil Bhride, Clane, Kildare, Republic of Ireland and the younger child is depending upon her for every small things and he is very attached to the petitioner and she has arranged Kindergarten admission for him at La Petite Ecole Montessori at Scoil Bhride, Republic of Ireland. Seeking permanent custody of the minor children and to declare her as O.P(FC) No.426/2017 3 the guardian of the children, this original petition is filed. In I.A.No.546/2017, the petitioner sought for a direction to the respondent to produce the minor children and grant her interim custody till 30/07/2017, which was allowed by the Family Court. In I.A.No.554/2017, she sought for temporary custody of the minor children and permission for her to take the children to the Republic of Ireland and to continue their education in Ireland. 4. To the interlocutory applications, respondent filed counter affidavit. While admitting matrimonial relationship and birth of the children, he contended that the eldest daughter was born at Perumbavoor and later she was taken to Ireland and she acquired Irish citizenship. Their son Steve Jeen was born in Ireland and he is an Irish citizen by birth. He is taking care of the children and he had denied the allegations raised by the petitioner. According to him, from the beginning of the matrimonial life, the attitude of the petitioner towards him was not good and accordingly there was a breakdown of matrimonial life. He further contended that the atmosphere at their home at Ireland was not conducive for upbringing of the children and even for providing the best O.P(FC) No.426/2017 4 education for them. He left Ireland along with the children on 29/04/2017. He had also obtained necessary certificate from the School in which the girl child was studying. He further contends that the petitioner was well aware that the children and the respondent left Ireland without any intention of returning. But she did not object to the same till the filing of the original petition before the High Court four months back. He further contends that the daughter has obtained admission in the 1[st] Standard at De Paul Public School Kuravilangadu and son is in the play school administered by the local Parish. According to him, grand parents are available to take care of the children and they have sound financial status to meet the necessities of the children. He also contends that school authorities at Ireland have given a farewell party to the girl child wishing all the best for her future studies in India. According to him, being the natural guardian of the minors, he is entitled for their custody. He further contends that the work schedule of the petitioner is 12 hours with a four days/week including night shift and therefore the petitioner cannot give any personal attention to the children. He therefore O.P(FC) No.426/2017 5 contends that for the welfare of the children, it would be better to educate them in India. He also submits that if the children are taken abroad, his chance for visiting them will be closed. Obtaining spouse visa for the respondent will be at the mercy of the petitioner and that she will not yield for the same and his right to visit the child will be denied for ever. Further, if the children are living in India, all the grand parents could visit them and the petitioner can also come whenever she requires and have interim custody while she is in India. If they are taken away from India, he will loose them forever, is his apprehension. 5. The petitioner also filed I.A.No.555/2017 before the Family Court seeking for a direction to the respondent to produce the passport and overseas citizen card of daughter Miss Neha Maria Jeen, passport and Indian Origin Card of son, Master Steve Jeen and to hand over the same to her. To the said application also, the respondent had filed counter affidavit disputing the claim on similar grounds. 6. The Family Court, after considering the respective contentions, observed that the Counsellor had expressed the O.P(FC) No.426/2017 6 scope for reunion of the spouses. In so far as sufficient time is not available for further counselling/ADR process, the Family Court had an interaction with the children in the chamber. The children expressed their desire to study in India. The Family Court observed that there is no material to indicate that the children were forcibly taken from the Republic of Ireland. Therefore, in order to have an effective ADR process to be done, the Family Court felt that, in the interest of the children, it would not be conducive to shift the School from which they are studying now. Accordingly, I.A.No.546/2017 was allowed and the minor children were given to the petitioner/mother till 31/07/2017, and she was asked to produce the children on the said date between 10 a.m and 10.30 a.m. I.A.No.554/2017 for giving custody to the petitioner to take the children to Ireland was dismissed. No orders are seen passed in I.A.No.555/2017 probably on account of the fact that temporary custody was not given to the mother. 7. By an interim order dated 2/8/2017, this Court had referred the parties to appear before the Consultant Psychiatrist as well as a Clinical Psychologist and they had filed a report. On a O.P(FC) No.426/2017 7 perusal of the said report, we do not think that there exists any problem which requires treatment for the couple. 8. Learned counsel appearing for the petitioner submitted that the children being Irish citizens, if the children are not permitted to be taken to Ireland under the custody of the petitioner, all the benefits of Irish citizens will be lost forever. Further, children being of a very tender age, they require the assistance and support of the mother. If the respondent does not want to live with them, he could visit the children at Ireland whenever he wants, for which he has a valid visa and the petitioner shall ensure that the visa is kept valid, whenever he intends to visit the children. 9. On the other hand, the learned counsel for the respondent submitted that the Family Court, having considered the matter properly, thought it fit to proceed with counselling/mediation, for which it is always advisable that the children are kept within the jurisdiction of this Court. If the children are permitted to go abroad along with the mother, even if the original petition is not proceeded further, it may not be O.P(FC) No.426/2017 8 possible for this Court to bring the children back to India. 10. Having heard the learned counsel on either side and having perused the records, admittedly, all the parties including the minor children were residing at the Republic of Ireland for the last eight years and they used to come to India only during vacation. It is also an admitted fact that the petitioner and the children are Irish citizens. Now, a situation has arisen, wherein the petitioner had to approach the Family Court at Pala, since the children were taken by the respondent to India and is residing within the jurisdiction of the said Court. She had sought for permanent custody as well as for interim custody of the minor children. 11. The issue relating to child custody when the children are removed from one country to another has been considered by the Apex Court in various judgments. (i) In _**V. Ravi Chandran (Dr.) (2) v. Union of India,** [(2010) 1 SCC 174)],_ the Apex Court was considering a case in which the minor was removed from one country to another in contravention of Court orders of the country where the family O.P(FC) No.426/2017 9 ## was residing. After evaluation the factual and legal aspects it is held as under: _“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._ O.P(FC) No.426/2017 10 _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 (1951 AC 352) 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 (1974) 1 All ER 913) and the said view has been approved by this Court in Dhanwanti Joshi [(1998) 1 SCC 112] Similar view taken by the Court of Appeal in H. (Infants), In re [(1966) 1 All ER 886 (CA)] has been approved by this Court in Elizabeth Dinshaw [(1987)1 SCC 42].” 31. Do the facts and circumstances of the present case warrant an elaborate enquiry into the question of custody of minor Adithya and should the parties be relegated to the said procedure before an appropriate forum in this country in this regard? In our judgment, this is not required.”_ O.P(FC) No.426/2017 11 In that case, Adithya, the minor was an American citizen, born and brought up in the United States of America. He has spent his initial years there. The Court observed that the natural habitat of Adithya is in the United States of America. Parties had also obtained a series of consent orders concerning his custody/parenting rights, maintenance, etc. from the competent courts of jurisdiction in America. The marriage between the couple was dissolved by the New York State Supreme Court, again the child custody order dated 18-4-2005 was incorporated. The parties agreed for modification of the custody order and, accordingly, the Family Court of the State of New York on 18-62007 ordered that the parties shall share joint legal and physical custody of the minor Adithya and, in this regard, a comprehensive arrangement in respect of the custody of the child has been made. The mother, however, took the child to India. Petitioner/father filed a writ of Habeas corpus before the Apex Court. The Apex Court found that the objections raised by the mother in the counter-affidavit about deprivation of basic rights of the child by the petitioner in the past; failure of the O.P(FC) No.426/2017 12 petitioner to give medication to the child; denial of education to the minor child; deprivation of stable environment to the minor child; and child abuse were hollow and without any substance. It was observed that the mother along with the minor has been staying in India for more than two years. She had not pursued any legal proceeding for the sole custody of the minor Adithya or for declaration that the orders passed by the American courts concerning the custody of minor child Adithya are null and void and without jurisdiction. It was further held as under: _“35. The facts and circumstances noticed above leave no manner of doubt that merely because the child has been brought to India by Respondent 6, the custody issue concerning minor child Adithya does not deserve to be gone into by the courts in India and it would be in accord with principles of comity as well as on facts to return the child back to the United States of America from where he has been removed and enable the parties to establish the case before the courts in the native State of the child i.e. the United States of America for modification of the existing custody orders. There is nothing on record which may even remotely suggest that it would be harmful for the child to be returned to his native_ O.P(FC) No.426/2017 13 ## _country._ _36. It is true that child Adithya has been in India for almost two years since he was removed by the mother—Respondent 6—contrary to the custody orders of the US court passed by consent of the parties. It is also true that one of the factors to be kept in mind in exercise of summary jurisdiction in the interests of the child is that application for custody/return of the child is made promptly and quickly after the child has been removed. This is so because any delay may result in child developing roots in the country to which he has been removed.”******_ (ii) In _**Surya Vadanan v. State of T.N.,** [(2015) 5 SCC 450]_ , the Apex Court in a similar situation where the child was brought to India, defying an order passed by the Foreign Court held that: _“63. There is also nothing on the record to indicate that any prejudice will be caused to the children of Mayura and Surya if they are taken to the UK and subjected to the jurisdiction of the foreign court. There is nothing to suggest that they will be prejudiced in any manner either morally or physically or socially or culturally or psychologically if they continue as wards of the court until a final order is_ O.P(FC) No.426/2017 14 _passed by the foreign court. There is nothing to suggest that the foreign court is either incompetent or incapable of taking a reasonable, just and fair decision in the best interests of the children and entirely for their welfare._ _64. There is no doubt that the foreign court has the most intimate contact with Mayura and her children and also the closest concern with the well being of Mayura, Surya and their children. That being the position even though Mayura did not violate any order of the foreign court when she brought her children to India, her continued refusal to abide by the interim and interlocutory order of the foreign court is not justified and it would be certainly in the best interests and welfare of the children if the foreign court, in view of the above, takes a final decision on the custody of the children at the earliest. The foreign court undoubtedly has the capacity to do so._ _65. We have considered the fact that the children have been in Coimbatore since August 2012 for over two years. The question that arose in our minds was whether the children had adjusted to life in India and had taken root in India and whether, under the circumstances, it would be appropriate to direct their repatriation to the UK instead of conducting an elaborate inquiry in India. It is always difficult to say whether any person has taken any root in a country_ O.P(FC) No.426/2017 15 _other than that of his or her nationality and in a country other than where he or she was born and brought up. From the material on record, it cannot be said that life has changed so much for the children that it would be better for them to remain in India than to be repatriated to the UK. The facts in this case do not suggest that because of their stay in India over the last two years the children are not capable of continuing with their life in the UK, should that become necessary. However, this can more appropriately be decided by the foreign court after taking all the factors into consideration._ _66. It must be noted at this stage that efforts were made by this Court to have the matter of custody settled in an amicable manner, including through mediation, as recorded in a couple of orders that have been passed by this Court. Surya had also agreed to and did temporarily shift his residence to Coimbatore and apparently met the children. However, in spite of all efforts, it was not possible to amicably settle the issue and the mediation centre attached to this Court gave a report that mediation between the parties had failed. This left us with no option but to hear the appeal on merits._ _67. Given these facts and the efforts made so far, in our opinion, there is no reason to hold any elaborate inquiry as postulated in L. (Minors_ ~~_) t_~~ _his elaborate_ O.P(FC) No.426/2017 16 _inquiry is best left to be conducted by the foreign court which has the most intimate contact and the closest concern with the children. We have also noted that Surya did not waste any time in moving the foreign court for the custody of the children. He moved the foreign court as soon as he became aware (prior to the efforts made by this Court) that no amicable solution was possible with regard to the custody of the children.”_ iii) In _**Nil Ratan Kundu v. Abhijit Kundu,** [(2008) 9 SCC 413],_ the Apex Court having evaluated the case law in regard to the grant of custody of minor child held as under: _“52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens_ O.P(FC) No.426/2017 17 _patriae jurisdiction and is expected, nay bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.”_ _12._ Keeping these principles in mind, the question that is required to be considered is whether the Family Court in India should conduct a summary enquiry into the matter or an elaborate enquiry into the issue regarding custody of the children. Of course, there is no order of any Foreign Court in regard to the custody of minor children. The parties were residing in the Republic of Ireland for more than eight years. Children are citizens of Ireland and were also brought up there. The elder child was studying in a school at Ireland. Though there is dispute between the parties in regard to the manner in which the children O.P(FC) No.426/2017 18 were brought to India, it is apparent that there are matrimonial issues between the couple and they do not intend to have a reunion, at least presently. Attempts made by this Court for a reunion between the couple also failed. The Family Court took the view that for the purpose of counselling as well as for mediation, it would be better to have the children within the jurisdiction of the Court. 13. There is no dispute about the fact that welfare of the children is of paramount importance as far as the minor children are concerned. In this case, children are of a tender age and they are not capable of taking a decision on their own. Whether they should study in India or abroad are all matters for the parents to decide. The elder girl was studying in a school at Ireland at the relevant time and it is stated that a transfer certificate has already been obtained. 14. The question would be whether the children, a daughter aged 7 years and a boy aged 3 years, should be deprived of their mother's care and attention. At this age, a girl child definitely requires the attention and care of the mother and O.P(FC) No.426/2017 19 there is no dispute about the fact that the boy child, aged 3 years also require mother's attention and care. Father's presence or the grand parents' love and affection will not be a substitute to the mother's care. 15. In the above circumstances, we are of the view that a summary enquiry alone was warranted under the circumstances, that is, to decide whether the children should be send to Ireland, where they were residing all along, so that the parties can agitate their rights before the appropriate forum at Ireland. 16. Taking into consideration all these facts we are of the view that the children should remain with the mother and since she is employed at Ireland, the children should be permitted to be taken to Ireland. The father, of course, has the right to visit the children whenever he requires. The rights of the father can also be protected by issuing certain directions to permit him to visit the children, as and when he requires. 17. The Family Court observed that the children had expressed their desire to study in India. We do not think that at this tender age, they will be in a position to take an intelligent O.P(FC) No.426/2017 20 decision. Of course, they have deep affinity to their father as well as grand parents. Same affinity they have to their mother as well. At this stage, they will not be in a position to give a prudent and intelligent opinion of their choice as to where they should reside and study, which has to be taken care of by the parents alone. 18. Another apprehension expressed by the learned counsel for the respondent is regarding the futility of proceedings pending before the Family Court, in the event of the petitioner being permitted to have interim custody of the minor children. Even otherwise, the children being Irish citizens, it will be more appropriate to permit the parties to approach the competent Court in Ireland having jurisdiction to decide such matters. It would be inappropriate for the Family Court at Pala to conduct an elaborate enquiry to decide the custody of children who are Irish citizens. Therefore, the Court at Pala need only make a summary enquiry into the matter, in which event, an elaborate enquiry is not warranted. But, it is for the petitioner to decide whether she should proceed further with the case pending O.P(FC) No.426/2017 21 before the Family Court at Pala, in which event, appropriate directions can be issued to furnish security for her appearance along with the minor children. But, this order shall not preclude her or the respondent from approaching the competent Court of jurisdiction at Ireland to settle the dispute between the parties. Accordingly, this O.P.(FC) is disposed of as under: i) Order dated 25/07/2017 in I.A.No.554/2017 is set aside. ii) I.A.No.554/2017 is allowed. The petitioner shall be given temporary custody of the minor children. She is permitted to take the children to Ireland, on her furnishing security in the form of a simple bond for Rs.5,00,000/- (Rupees five lakhs only) with two sureties for the like amount, to ensure her appearance, and to produce the children as and when called upon. iii) I.A.No.555/2017 is allowed. The respondent shall produce the passport, overseas citizen card of Neha Maria Jeen and passport and Indian Origin Card of Master Steve Jeen before the Family Court within a period of three days from today and the same shall be handed over by the Court to the petitioner. O.P(FC) No.426/2017 22 iv) The respondent shall be permitted to visit the children whenever he wants and the petitioner shall ensure that the spouse visa is kept renewed until further orders. v) This order shall not preclude any of the parties in approaching the competent court of Ireland, if so advised. (Sd/-) **(A.M.SHAFFIQUE, JUDGE)** (sd/-) **(K.P.JYOTHINDRANATH, JUDGE)** jsr