(Dhananjaya Y. Chandrachud, C.J. and J.B. Pardiwala and Manoj Misra, JJ.)
Amit Siddharth Survase _____________________________ Petitioner;
v.
Nienke Leida Hulshof and Others ___________________ Respondent(s).
Special Leave Petition (Criminal) No. 5224 of 2024, decided on April 15, 2024
The Order of the court was delivered by
Order
1. The petitioner and the first respondent married in the Netherlands under Dutch Law on 5 July 2013. They have a five year old child who was born on 14 December 2018. The first respondent and the child are citizens of the Netherlands, while the petitioner is an Indian citizen.
2. A decree of divorce was granted by the Dutch court on 28 April 2023. The terms on which divorce has been granted by the Dutch Court envisage that the ‘main residence’ of the child would remain with the first respondent while the petitioner is entitled to physical access to the child in terms of the stipulations in the order.
3. On 11 July 2023, allowing an application moved by the petitioner, the Dutch court granted permission to the petitioner to travel with the child to India for two weeks in August 2023. Subsequently, the Dutch Court also granted the petitioner permission to apply for a new passport for the child and directed the first respondent to refrain from obstructing the travel. However, after having left the Netherlands, the petitioner (and the child) did not return to the Netherlands within the stipulated two weeks.
4. Allowing an application moved by the first respondent, the Dutch court issued an order on 9 November 2023 directing the immediate return of the child, no later than 28 November 2023. Notably, the order only directed the return of the child to the Netherlands and did not modify or rescind the ‘care arrangement’ stipulated in the divorce decree dated 28 April 2023. The petitioner did not comply with the order and separately moved the Family Court at Mumbai seeking custody of the child. The petitioner also filed an appeal against the order dated 9 November 2023 which is pending before the Dutch Court.
5. At that stage, the first respondent travelled to India and moved a petition seeking a writ of habeas corpus before the High Court of Judicature at Bombay. By an interim order dated 8 January 2024, the High Court directed the petitioner to hand over custody of the child to the first respondent. However, the petitioner failed to comply with the directions of the High Court and eventually a bailable warrant was issued.
6. On 11 January 2024, the petitioner and the child were produced before the High Court, and the Division Bench heard the parties in Chambers. As an interim arrangement, the custody of the child was handed over to the first respondent. Finally, by the impugned judgment dated 7 February 2024, the petition seeking a writ of habeas corpus was allowed, directing the return of the child to the first respondent so as to enable her to proceed to the Netherlands.
7. The terms on which the Division Bench of the High Court allowed the petition for habeas corpus are set out in paragraph 41 of the judgment dated 7 February 2024, which is set out below:
“i) Custody of Child ‘N’ is already handed over to the Petitioner by Order dated 11th January 2024. Hence, the Petitioner is permitted to take child ‘N’ with her to the Netherlands.
ii) The Registrar (Judicial-I) of this Court is directed to handover the pass port of the Petitioner as well as the passport and OCI card of child ‘N’ to the Petitioner forthwith on production of an authenticated copy of this Order.
iii) The Registrar (Judicial-I) also to return the passport of the Respondent No. 2 to him on production of an authenticated copy of this Order.
iv) The Respondent No. 2 is entitled to talk/meet to child ‘N’ as may be mutually decided between the parties.
v) The Respondent No. 2 is entitled to contact with child ‘N’, her care and upbringing as permitted in the aforesaid Order dated 28th April, 2023, passed by the Dutch Court which is in force.
vi) Whenever the Respondent No. 2 wanted to avail the right of contact, care and upbringing given under the said Order dated 28th April, 2023 of the Dutch Court, he can do so by giving notice of at least two weeks in advance intimating in writing to the Petitioner and if such request is received, the Petitioner to positively respond in writing to allow the Respondent No. 2 to contact/meet child ‘N’.
vii) If the above Order is terminated, the Petitioner shall seek an appropriate order/direction from the Dutch Court/s to revive/restore the same, so that, child ‘N’ is not deprived of the support of the father.
viii) Until such revival/restoration of the Order, if the Respondent No. 2 visits at the Netherlands, the Petitioner shall allow him to contact/meet child ‘N’ for two hours per day, thrice a week, at the time and venue prefixed by the parties. The Respondent no. 2 shall not be entitled to and will not make any attempt to take child ‘N’ away from the said venue.
(ix) Petitioner will permit the Respondent No. 2 to interact with child ‘N’ on telephone/mobile or video conferencing on every Friday, Saturday and Sunday, between 5:00 p.m. to 6.00 p.m. IST or as may be agreed between the parties.”
(emphasis supplied)
8. Significantly, while issuing the above directions, the High Court emphasized the importance of ‘shared parenting’ and the right of the petitioner to have contact with and access to the child. Relying on the decision of this Court in Yashita Sahu v. State of Rajasthan,1 the High Court affirmed that courts should afford sufficient visitation rights to the parent who is not given custody of the child so that the child does not lose social, physical and psychological contact with them. The reasoning of the High Court in paragraphs 40-40.2, makes it clear that although the custody was undoubtedly handed over to the first respondent, securing the petitioner’s right to have access to the child was central to the High Court’s decision in the impugned judgment.
9. Pursuant to the impugned judgment, the first respondent and the child left for the Netherlands on 7 February 2024 to reside there. From the submissions before this Court and the documents on record, it appears that after the first respondent returned to the Netherlands, she filed a petition before the Dutch court inter alia seeking that the care arrangement stipulated in the divorce decree dated 28 April 2023 be suspended and appropriately amended. The petitioner avers that he received notice of these proceedings by an email dated 13 March 2024. On the same day, a letter was issued by the Immigration and Naturalisation Services of the Ministry of Justice and Security of the Government of Netherlands holding that:
(i) the petitioner does not have a right of residence in the Netherlands; and
(ii) the residence documents which were issued to the petitioner would have to be surrendered.
10. It has emerged during the course of the hearing that the order dated 13 March 2023 was preceded by the lodging of a Police complaint by the first respondent before the Dutch authorities. The grievance of the petitioner is that the order revoking his residence was passed on a complaint lodged by the first respondent.
11. The submission which has been urged on behalf of the petitioner by Mr. S Muralidhar, senior counsel is that clause (vi) of the operative directions which were issued by the High Court envisages that the petitioner would be entitled, as a matter of right, to participate in the contact, care and upbringing of the child in terms of the order of the Dutch court dated 28 April 2023 and when he seeks to do so, he would furnish two weeks advance notice to the first respondent to which the latter would have to respond positively to permit the petitioner to associate with the child. Moreover, it was envisaged in clause (vii) that if the order of the Dutch court dated 28 April 2023 was terminated, the first respondent (to these proceedings) would seek an appropriate direction from the Dutch court for revival/restoration so that the child is not deprived of the support of the father. These conditions, it has been submitted, are rendered impossible to comply with since the immigration service has barred the entry of the petitioner into the Netherlands acting on the complaint of the first respondent.
12. Responding to the above submissions, it has been urged on behalf of the first respondent by Mr. Anil Malhotra, counsel, that the first respondent has nothing to do with the cancellation of the right of residence of the petitioner in the Netherlands. It was urged that permission was granted to the petitioner to reside in the Netherlands in terms of Article 20 of the Treaty on the Functioning of the European Union (TFEU) which envisaged that the petitioner would reside in the country so as to provide for the care and upbringing of the child. It has been submitted that since the petitioner left the Netherlands with the child and did not return back, the purpose of the grant of a permit of residence ceased to exist. Nonetheless, it has been urged on behalf of the first respondent that the petitioner may apply independently for entering into the Netherlands and should he be granted a permit to enter the Netherlands, the first respondent would comply with the terms which the orders of the Bombay High Court have imposed.
13. The order of the Dutch Court dated 28 April 2023, admittedly, provides for participatory access to the petitioner in relation to the care and upbringing of the minor child. As of date, it is common ground between both counsel that the order dated 28 April 2023 continues to hold the field. Clause (vii) of the order of the Bombay High Court contains a clear stipulation that if the order dated 28 April 2023 is terminated, the first respondent shall seek an appropriate direction from the Dutch court to restore the order so that the child is not deprived of the support of the father. In stark contrast to this direction to seek a revival on termination, the first respondent has in fact moved the Dutch court on her own accord for cancellation of the terms imposed in the order dated 28 April 2023 including inter alia access that has been granted to the petitioner as the father of the child.
14. Further, the consequence of the revocation of the right of residence of the petitioner in the Netherlands on 13 March 2024 is that the petitioner would be unable to enter the country where the child presently resides. The first respondent, who is a Dutch national, invoked the jurisdiction of the Bombay High Court under Article 226 of the Constitution of India. Having secured the benefit of an order for handing over custody of the child to her, the first respondent is duty bound to comply with the terms on which custody was handed over to her. If the first respondent fails to comply with the terms which were imposed by the High Court, it would be open to the petitioner to move appropriate proceedings before the High Court. The High Court exercised parens patriae jurisdiction over a matter falling within its jurisdiction and in that capacity, imposed specific conditions allowing access to the father while ordering the return of the child to the mother. While the High Court envisaged that the child and the mother being Dutch nationals, would return to their home country, specific arrangements were made for access for the father in terms of an order issued by the Dutch court.
15. Having taken the benefit of the order of the Bombay High Court, secured custody of the child and been permitted to return to her home country, the first respondent must take all steps to cooperate in the due implementation of the conditions which have been imposed by the High Court. As stated above, the actions of the first respondent are not consistent with the express directions of the High Court in paragraph 41 and the spirit of the judgement which emphasizes the significance of visitation rights and equal support for the child from both parents. The impugned judgement of the High Court is a balanced judgement that protects the ‘best interest of the child’. In this background, it is unconscionable for the first respondent to increase the hostility between the parties by preventing the petitioner from contacting the child. The actions of the first respondent not only violate the conditions in the impugned judgement but also run the risk of adversely impacting the child.
16. The first respondent has stated in the submission of her counsel before this Court that she would have no objection if the petitioner were to independently apply for a Visa to enter into the Netherlands. The first respondent shall specifically issue a “No Objection” to the Dutch authorities should the petitioner seek to have a permit to enter the Netherlands to gain access to the child in terms of the order of the High Court dated 7 February 2024 expressing that she consents to the grant of a permit to the petitioner. If the first respondent fails to abide by the conditions which are contained in this order, we grant liberty to the petitioner to move the Bombay High Court for appropriate directions including for recalling the judgment dated 7 February 2024.
17. The jurisdiction of the High Court is of a continuing nature and if it finds that the conditions which it had imposed in the position seeking a writ of habeas corpus have not been observed, the High Court would not be powerless to ensure that the sanctity of the law and its order is maintained.
18. A copy of this order shall be placed on the record of the court in the Netherlands by the first respondent.
19. The Special Leave Petition is accordingly disposed of.
20. Pending applications, if any, stand disposed of.
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1 (2020) 3 SCC 67
