In May 2023, the Supreme Court sentenced an NRI residing in the US to six months jail and a fine of Rs 25 lakh for defying its order to bring back his 12-year-old son to India on July 1, 2022. The case stemmed from a custody battle between the husband and wife. The Court noted that the contemnor never had any intention of bringing the child back to India.
Other cases involving Indian children abroad have been on the rise. On July 16, 2023, a Berlin court ruled that the custody of Indian baby Ariha Shah would be granted to the German state. It further said that the parents were no longer authorised to decide on the whereabouts of their child. Ariha was only seven months when the Jugendamt (the German youth services) took her into custody after she sustained an injury on her private parts. She has been in foster care in Germany since September 23, 2021. German authorities had accused Ariha’s parents of mistreating her, which led to her placement in state-sponsored foster care.
In another case of a similar nature, this time in Norway, Sagarika Chakraborty and her husband, an Indian couple living there, had their children taken away by the Norwegian Child Welfare Services, which objected to parenting habits that are considered typical in Indian culture. The couple appealed to the Indian foreign ministry to intervene in the case. After a diplomatic row, the Norwegian authorities decided to award custody of the children to their father’s brother, enabling him to bring them back to India.
Coming back to the first case in the US, the marriage between the parties was solemnised in 2007, after which the wife started residing with her husband in the US. Their son was born on October 27, 2007, and was a US citizen. According to the wife, after the birth of their child, at the instance of her husband, both she and the son were sent to Canada where his mother and sister were residing. The wife’s case was that on July 27, 2013, they were thrown out of the house, which compelled her to come to Ajmer in Rajasthan in August along with her son.
The husband approached a Canadian court for custody of his son. An ex-parte order granting sole custody to him was passed by the Court. It also issued directions to various agencies and Interpol to enforce the order. A warrant was also ordered to be issued against his wife.
In India, the husband filed a petition seeking a writ of habeas corpus for the production of the child before the Rajasthan High Court. The petition said that a settlement was arrived at which was recorded in an order dated December 17, 2015. It disclosed that the parties agreed to live together on the terms set out in the said order. Both agreed to withdraw the cases filed against each other within four months. The husband agreed to find out three or four suitable flats in US with an option for his wife to select one. One of the clauses of the settlement was that till his wife shifted to the US, the husband would regularly visit India. Similarly, the wife agreed to visit the US along with her son.
But then, the husband filed a contempt petition before the High Court alleging that the wife had committed breach of the consent order. The Court convicted the wife, after which she approached the Supreme Court. The Supreme Court while setting aside the order of conviction ordered the revival of the disposed habeas corpus petition. However, on January 11, 2019, the High Court disposed of both the habeas corpus petition and the contempt petition. Directions were issued for providing access to the husband to meet his child physically as well as through video conferencing.
This was challenged before the Supreme Court in a criminal appeal by the husband. In September 2019, an order of payment of maintenance and a decree of divorce was passed against the wife by a family court in Ajmer.
In the criminal appeal, orders were passed by the Supreme Court from April 5, 2021. It permitted the husband to take his son to Canada from June 1, 2021 to June 31, 2021 with a direction to bring him back to Ajmer on June 30, 2021, where the wife was residing. As India is not a signatory to The Hague Convention, on an application made by the wife, the Court permitted her to get the order of the Supreme Court dated April 5, 2021, mirrored by a competent court in Canada. After some delay, the husband signed the necessary documents, but attempted to oppose them on the ground that he had signed them under duress. Therefore, the concerned Court did not mirror the order of this Court.
As far as the apex court’s April 5, 2021, order was concerned, the husband took the minor son with him to Canada and brought him back, albeit belatedly. Incidentally, a finding was recorded in the Court’s earlier order that the contemnor never intended to bring the child back to India. Even though the child had a US passport which had expired, the father did not apply for renewal. In one of the earlier hearings, he pleaded that as an investigation was pending in the US about sexual abuse of the child, he could not apply for renewal. Also, he never applied to the Court for a grant of extension of time to bring back the child and even after the expiry of three months from the date of the order holding him guilty of contempt, he showed no remorse.
In the US too, the Circuit Court on January 24, 2023, noted that the minor son was talking about his ancestral house being sold. The Court observed that it was a gross error on the part of the father to talk to the child about pending litigations either in India or Canada. The Supreme Court of India also directed the Government of India as well as the CBI to take all possible steps to secure the presence of the contemnor in India with a view to ensure that he undergoes the sentence and pays the fine.
This is not the first time the Court has given such a judgment. In November 2022, it awarded six months imprisonment to a Kenyan citizen of Indian origin and imposed a fine of 25 lakh on him for deliberately committing acts which lowered the dignity of the Court and attracted punishment for contempt of court, besides civil contempt.
—By Shivam Sharma and India Legal Bureau