The Supreme Court has sought the Centre’s response on the issue of exploring the possibility of entering into mutual agreements with the US in matters related to child custody disputes as such cases are increasing due to Indians residing there.
The apex court passed the order while holding a man, who is a resident of the US since 2004, guilty of civil contempt for his failure to bring back his child to India on the order of the court in May last year.
A bench of justices S K Kaul and A S Oka noted in its January 16 order that the contempt petition filed by the woman, who married in 2007, is an outcome of an unfortunate matrimonial dispute and “as it happens in every such dispute, the child is the worst sufferer”.
It said as a result of the “breaches committed” by the man, the woman has been deprived of the custody of her 12-year-old son to which she is entitled in terms of the May 11, 2022 order.
According to the terms of settlement recorded in that order, the child, who was in sixth standard at that time, shall continue to live at Ajmer and complete his education up to 10th standard and thereafter, he shall be shifted to the US where the father was residing.
It was also agreed that until the child completes his education up to 10th standard, he would visit Canada and the US with his father every year from June 1 to June 30.
The bench noted in its order the man came to Ajmer on June 7 last year and took his son with him to Canada but he has failed to bring him back to India.
“Therefore, we have no manner of doubt that there is wilful disobedience on the part of the respondent (man) of the direction to bring back the child to India within one month,” it said.
Observing that violations made by the man are of a “very serious nature”, the bench held him guilty of civil contempt.
“We also feel that even though India may not be a party to the Hague Convention, there may be a possibility of entering into mutual agreements with the USA as the number of such cases is increasing on account of Indian residents staying in the US,” it said.
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“We issue notice to the Union of India, Ministry of External Affairs and Ministry of Home Affairs for the said purpose returnable on February 6, 2023,” the bench said, while posting the matter for hearing on sentence on February 6.
The top court noted that the counsel appearing for the CBI has submitted before it that a notice dated December 27, 2022 has been issued to the man, who was present in the court proceedings held on January 16 through virtual mode, asking him to appear before the agency on January 31.
It said the counsel has also submitted that if the man does not appear, steps will be taken under the Mutual Legal Assistance Treaty with the US which is in force since October 3, 2005.
“The respondent being quite aware of this issue now, is expected to appear on January 31, 2023 before the authorities concerned, failing which, necessary orders would ensure from the authorities,” the bench noted in its January 16 order.
The apex court noted that according to the case of the woman, after the birth of their child, at the instance of the man, both she and her son were sent to Canada where the man’s mother and sister were residing.
The woman said that in July 2013, she along with her son were thrown out of the house which compelled her to come to India in August 2013.
The bench noted that the man adopted a remedy before the Canadian court for the custody of his son and an ex-parte order granting sole custody to him was passed by the concerned court.
It also noted that the Canadian court had issued directions to various agencies and INTERPOL to enforce the order and even a warrant was ordered to be issued against the woman.
The woman then filed a petition seeking the child’s appearance before the Rajasthan High Court.
Later, the matter came to the apex court and on May 11 last year, the terms of the settlement, signed by both parties and notarised, were placed on record.