VASUDHA SETHI Vs. KIRAN V. BHASKAR

JUDGEMENT

(1.) Leave granted.

(2.) The respondent no.1 and the appellant no.1 were married in New York, United States of America (for short "USA ") on 13th January 2011. The child was born in USA on 21st January 2016. Thus, the child is a citizen of USA by birth and is holding a USA passport. Unfortunately, the child was diagnosed with hydronephrosis which required surgery. It is the case of the respondent no.1 that as they were not in a position to secure an appointment of a doctor in USA for surgery, it was agreed between the appellant no.1 and the respondent no.1 that the child will undergo surgery at Max Hospital, Saket. As the child is a citizen of USA, consent for international travel with one legal guardian was executed by and between the appellant no.1 and the respondent no.1 on 4th February 2019. The consent was recorded in the said document to enable the child to travel with the mother - the appellant no.1 to India. The consent was executed for the period between 5th February 2019 to 26th September 2019. The consent document recorded that the child will be leaving USA on 5th February 2019 and will be returning back to USA on 26th September 2019. It was further recorded that any changes to this plan shall be discussed and consented to by both the parents. A certificate dated 17th September 2019 issued by Dr. Anurag Krishna, Director, Paediatrics and Paediatric Surgery of Max Hospital, Saket, New Delhi records that the child underwent a surgery on 14th March 2019. It records that he had examined the child on 12th July 2019 when he found that the child was doing well. Dr. Anurag Krishna has recorded that the child needs to be reviewed 6 to 7 months post-surgery along with a fresh ultrasound and renal scan.

(3.) It is the case of the respondent no.1 that at the time of surgery, he flew down to India. After the surgery, he returned to USA for his work. It is brought on record that the respondent no.1 has a status of permanent resident in USA which is valid up to 16th August 2031. According to the case of the respondent no.1, the appellant no.1 violated the international travel consent by not allowing the minor child to come back to USA by 26th September 2019. According to the respondent no.1, the appellant no.1 detained the minor in her illegal custody in India. Therefore, the respondent no.1 filed a petition on 30th January 2020 before the Circuit Court of Benton County, Arkansas, USA, which according to the respondent no.1 is the Court of competent jurisdiction. The petition was filed for seeking primary care, control, and custody of the minor on account of his wrongful detention outside USA. On 3rd February 2020, the Circuit Court passed an interim order granting primary care, custody, and control of the minor child to the respondent no.1 and directed the appellant no.1 to return the child to the respondent no.1. In the petition for habeas corpus filed by the respondent no.1 in the High Court, he has stated that though a copy of the said order of the Circuit Court was forwarded to the appellant no.1 by email, she continues to detain the minor child in India. In the circumstances, the respondent no.1 filed a petition seeking a writ of habeas corpus in the High Court of Punjab and Haryana and prayed for a direction to the State of Haryana to secure the release of the minor child from the illegal custody of the present appellants. The appellant nos.2 and 3 are the parents of the appellant no.1 who are residents of Gurgaon in Haryana. At present, the appellant no.1 is staying with them. Various interim orders were passed in the said petition from time to time. The High Court appointed a learned counsel as amicus curiae, who interacted with the appellant no.1 as well as the respondent no.1 on phone/WhatsApp calls with a view to ascertain their respective stands. He also submitted a report. By the impugned Judgment and order, the writ petition filed by the respondent no.1 was allowed. In paragraph 55, the High Court issued following directions: -