Case Note & Summary
The judgment addresses a custody dispute between parents of a minor daughter, Insiya. The father, an Indian citizen, and the mother, a dual citizen of Netherlands and Pakistan, were married in India in 2011. Their daughter Insiya was born in the Netherlands in 2014 and holds Dutch nationality. After the mother left India with the child in December 2014, multiple litigations ensued across Dutch and Indian courts. The Dutch courts initially rejected the father's application for return of the child under the Hague Convention, finding that the child's habitual residence had shifted to the Netherlands. The mother obtained a preliminary custody order from the Dutch District Court in March 2016. Meanwhile, the father initiated proceedings in India under the Guardians and Wards Act, 1890, and secured interim custody from the Family Court in July 2017. The mother challenged this, and the High Court on January 11, 2018, directed the Family Court to decide custody without delay pending jurisdictional issues. Subsequently, the Family Court on January 29, 2018, ordered return of custody to the mother. The father then filed the present writ petition challenging that order. The extract provided does not include the court's analysis or final decision.
Issue of Consideration
WRIT PETITION NO.3367 OF 2018
Law Points
- Jurisdiction of Indian courts in custody matters involving foreign nationals
- Inapplicability of Hague Convention on Child Abduction in India
- Determination of habitual residence of child
- Best interest principle in interim custody disputes
Case Details
2018 LawText (BOM) (04) 36
WRIT PETITION NO.3367 OF 2018
Venkatesh Dhond, Sr. Advocate with Mrunalini Deshmukh, Giriraj Subramanium, Vivek Vashi, Yusuf Iqbal, Parinaz Vakil, Sidharth Singh and Utkarsha Srivastav i/b Vashi and Vashi for the petitioner; Rajani Iyer, Sr. Advocate i/b Veena Gowda for the respondent
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Nature of Litigation
Custody dispute involving minor child of Indian father and mother with Dutch and Pakistani citizenship, with parallel proceedings in India and the Netherlands.
Remedy Sought
Petitioner father seeks writ of certiorari to quash the Family Court's order dated 29 January 2018 directing return of custody of the minor child Insiya to the respondent mother.
Filing Reason
Aggrieved by the Family Court's order to return custody of the child, allegedly passed without proper consideration of jurisdictional issues, prior foreign orders, and the best interests of the child.
Previous Decisions
Orders of the Dutch District Court (6 July 2015, 1 March 2016), Hague Court of Appeal (19 August 2015), High Court of Amsterdam, and Dutch Supreme Court (12 January 2008/2018) on habitual residence, custody, and jurisdiction; Family Court Bandra order dated 18 July 2017 granting interim custody to father; Bombay High Court order dated 11 January 2018 directing Family Court to decide custody without delay; Family Court Bandra order dated 29 January 2018 directing return of custody to mother.
Issues
Whether the Family Court had jurisdiction to pass an interim custody order when the child is a Dutch national and Dutch courts have already passed custody orders.
Whether the impugned order was passed in violation of principles of natural justice.
Whether the best interest of the child was properly considered.
Judgment Excerpts
The petition revolves around a minor child “Insiya” aged four years.
The Hague District Court examined the issue and held that Insiya's habitual place of residence upto 7 th December 2014, was in India, and thereafter, the mother travelled to Netherlands with the children on 7 th December 2014, in order to allow Insiya to be vaccinated.
The Court of Appeal held that there was a case of change of usual place of residence of Insiya due to action of the parties, and it can be assumed from those actions that the presence of Insiya in Netherlands was not temporary or coincidental.
Procedural History
Parties married on 29 April 2011 in India; daughter Insiya born on 6 March 2014 in Netherlands. Mother left India with child on 7 December 2014. Mother filed custody application and divorce notice in Dutch courts in April–May 2015; father filed return application under Hague Convention. Dutch District Court on 6 July 2015 rejected return application, finding child's habitual residence shifted to Netherlands; Hague Court of Appeal confirmed on 19 August 2015. Dutch District Court on 1 March 2016 granted preliminary custody to mother. Father challenged jurisdiction under Brussels II Bis; High Court of Amsterdam set aside Dutch court's jurisdiction over divorce but not custody; Dutch Supreme Court later held Dutch court had jurisdiction over ancillary custody matters. On 29 September 2016, father brought child to India; mother alleged abduction. Interpol notices issued but later withdrawn; India rejected extradition request on 5 May 2017. Father filed petition under Guardians and Wards Act, 1890 before Family Court Bandra, obtaining interim custody on 18 July 2017. Mother's writ petition resulted in High Court order on 11 January 2018 directing Family Court to decide custody. Dutch District Court (Hague) on 22 December 2017 decided mother's Hague Convention application, noting India not a party. Family Court Bandra on 29 January 2018 ordered return of custody to mother. Father filed present writ petition.
Acts & Sections
- Special Marriage Act, 1954:
- Guardians and Wards Act, 1890:
- Hague Convention on the Civil Aspects of International Child Abduction, 1980: Article 3
- Council Regulation (EC) No.2201/2003 (Brussels II Bis): Article 3, 4, 5
