SHEHZAD HEMANI Vs. NADIA RASHID

JUDGEMENT

(1.) The petition revolves around a minor child "Insiya" aged four years. Insiya is the daughter of the petitioner, who is an Indian citizen and the respondent with dual citizenship, being a citizen of Netherlands and also a Pakistani National. The present petition is filed by the petitioner father, being aggrieved by the order passed by the Family Court at Bandra on 29th January 2018, directing to return the custody of Insiya to the respondent, who is directed to remain present before the Family Court on 27th March 2018.

(2.) The petition, as any other custody petition has been filed after going through an estranged legal battle between the parties fought in India as well outside the boundaries of India in the Dutch District Court, and has travelled up to the High Court of Amsterdam and the Dutch, Supreme Court. In order to appreciate the contention raised in the petition and to deal with the same, it is necessary to delve upon the chronology of events in a simplified chronological manner, though the proceedings initiated by the parties against one another would make a long synopsis of events.

(3.) The petitioner is a Managing Director of a Multinational Steel Manufacturing and Commodities Trading Company, and has deep roots in the Indian society. The petitioner and respondent got married on 29th April 2011 in accordance with the Islamic rituals in India. The marriage between the petitioner and the respondent was registered under the Special Marriage Act, 1954. The respondent was divorced prior to marrying the petitioner and from the earlier marriage, she has a minor daughter Ms.Elvira Zeeshan Choudhry, whose father is a Pakistani National. Post marriage, the petitioner and the respondent chose Bandra (West), Mumbai, as their matrimonial home. The daughter Insiya was born on 6th March 2014 in Netherlands and she is a Dutch National. After the birth of Insiya, the respondent returned to India and was accompanied by her elder daughter Elvira, who came to be admitted to an American International School in Mumbai. The respondent left India on 7th December 2014 and this is the beginning of the tussle between the parties. According to the petitioner, the respondent had taken Insiya and her elder daughter Elvira to Netherlands for vaccination, whereas according to the respondent, it was mutually decided between the parties that they would relocate the family to Amsterdam and it was decided that the respondent with the children would proceed ahead, followed by the petitioner. The respondent did not return with the children and it is the specific case of the petitioner that in the intervening period, he visited Netherlands on 15 occasions to get in touch with the respondent and his daughters, but he was granted a limited access, which was strictly monitored. At this point of time, the respondent made her intention clear to continue staying in Netherlands and expressed her intention not to return to India. From this point onwards, commenced the journey of the long rounds of litigation between the parties. On 23rd April 2015, the respondent instituted a Quia Timet application for custody before the Dutch District Court and also sent a divorce notice to the petitioner. On 7th May 2015, the respondent also instituted proceedings before the Dutch High Court seeking dissolution of marriage. At the same time, the petitioner also filed an action before the Hague, District Court, alleging abduction and seeking return of Insiya by invoking the International Child Abduction Act of 25th October 1980 (also referred to as "Convention"). The petitioner alleged that the removal/retention of Insiyia without his permission attracted Article 3 of the Convention and he alleged that said removal or non return is in breach of the custody Rights under the law of the State in which the child was happily residing immediately before her removal. The jurisdiction of the Hague District Court was invoked to decide a dispute between the parties as to what was habitual residence of Insiya before her unlawful removal by the respondent, since the petitioner specifically asserted that Insiya's habitual place of residence before her removal, was in India. The Hague District Court examined the issue and held that Insiya's habitual place of residence up to 7th December 2014, was in India, and thereafter, the mother travelled to Netherlands with the children on 7th December 2014, in order to allow Insiya to be vaccinated. The Hague, District Court concluded that Insiya's habitual place of residence during the period from 8th December 2014 to 15th April 2015 was moved from India to Netherlands, and therefore, there was no case whatsoever of retention without permission within the meaning of Article 3 of the Convention. In this background, the District Court rejected the father's application for return of Insiya to India.