Daily Archives: March 16, 2019

EVERY INDIAN MALE who fought against Fake Dowry, molestation, Fake rape etc deserves a MEDAL

EVERY INDIAN MALE who fought against false cases of Dowry, mollestation, rape etc deserves a MEDAL of Honour, a Citation and praise ! Jai Ho !
///President Ram Nath Kovind confers Padma Bhushan award upon ISRO scientist Nambi Narayanan. #PadmaAwards////

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Senior citizens aged 70+ residing at faraway places harassed by Fake498a. Allah. HC 498a QUASH

Senior citizens aged 70+ residing at faraway places harassed by Fake498a.

ALLAHABAD HC quashes this fake case and also refers to Supreme court’s famous Geeta Mehrotra and another vs. State of U.P. (supra).

The Hon HC quotes the words , A fact borne out of experience cannot be overlooked that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial disputes ?

Meanwhile wife and her father seem to have filed a completely FAKE 498a claiming that some persons shot her at the inlaws house !!!

#AllhabadHighCourt #498a QUASH

///3. Brief facts of the Application No.4314 of 2005 is that the applicant nos.1 to 3 are the senior citizens aged about 72 years, 78 years and 75 years, respectively. All are residing at their native place at Pune, New Delhi and Lucknow, respectively. Due to advance age they are facing various deceases and almost confined to their houses. Applicant no.4 is residing with her husband at Noida and she is actively connected with WHO and discharging her duties as program officer. All the four applicants are peace loving and law abiding citizens.

6………. Injury report reveals that medico legal was made under the direction of of Minister of State of Government of U.P. Investigating Officer had interrogated S.I Rajeev Gupta who had denied the factum of the said incident and also visited of Smt. Manmohini Sharma in an injured condition at the police station and also examined the independent witnesses Natiram, Gulzar and Zabbar who had specifically denied the factum of the alleged incident of firing. On the basis of investigation, after interrogated all the concerned persons the I.O. Was of the view that the F.I.R has been lodged on perse-false allegations and the said story has been concocted only to grab the property belonging to Smt. Padma Sharma.

….

20… There is no occasion to the applicants to torture or cruelty toward opposite party no.2. Opposite party no.2 are the next beneficiary in respect of demand of dowry…… A fact borne out of experience cannot be overlooked that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial disputes ? ……

21. In the light of the aforesaid aforesaid judgements, the Application u/s 482 No.4314 of 2005 is hereby allowed and the proceeding against the applicants are hereby quashed as per the principle laid down by the Hon’ble Apex Court in the case of Geeta Mehrotra and another vs. State of U.P. (supra).

22. Registry is directed to inform the trial court to proceed with the cases in accordance with law. /////////

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved

Court No. – 17

Case :- APPLICATION U/S 482 No. – 4314 of 2005

Applicant :- V.V. Shree Khande And Others

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Rajvi Gupta,Dileep Kumar

Counsel for Opposite Party :- Govt. Advocate,N K Srivastava,P K Srivastava

CONNECTED WITH

Case :APPLICATION U/S 482 No. – 6652 of 2005

Applicant :- Smt. Padma Sharma And Others

Opposite Party :- State Of U.P. And Anr.

Counsel for Applicant :- Rajiv Gupta,Dileep Kumar

Counsel for Opposite Party :- Govt. Advocate,N.K. Sharma,Pankaj Kumar Srivastava

Hon’ble Suresh Kumar Gupta,J.

1. Both these applications under Section 482 Cr.P.C are based on same set of fact so both these applications decided by common order.

2. This application has been filed under Section 482 Cr.P.C with the request to quash the impugned order dated 7.4.2005 passed by the Additional Sessions Judge, Court No.13, Meerut in Criminal Revision No.468/04 Rajeev Sharma & others v. Smt. Manmohini Sharma, and order dated 23.8.2004 passed by the learned Chief Judicial Magistrate, Meerut rejecting the final report and taking cognizance against the applicants and others by issuing process for facing trial under Sections 498-A, 323, 504, 506, 307 IPC and Section of the Dowry Prohibition Act.

3. Brief facts of the Application No.4314 of 2005 is that the applicant nos.1 to 3 are the senior citizens aged about 72 years, 78 years and 75 years, respectively. All are residing at their native place at Pune, New Delhi and Lucknow, respectively. Due to advance age they are facing various deceases and almost confined to their houses. Applicant no.4 is residing with her husband at Noida and she is actively connected with WHO and discharging her duties as program officer. All the four applicants are peace loving and law abiding citizens.

4. Brief fact of the Application No.6652 of 2005 is that one Padma Sharma, the sister of applicant nos.1 to 3 was married to Dr. K.S. Sharma who had been residing at Shashtri Nagar, Meerut, after his retirement from the post of Professor, Smt. Padma Sharma has been residing at her husband’s self owned house along with her two sons namely Sanjiv Sharma and Rajiv Sharma. Sanjeev Sharma is a bachelor and he has been discharging his duties as government servant in District Meerut. His younger son master Rajiv Sharma after completing his studies joined at MVM Institution as an Administrative Officer and also discharging his duties on the said post and he is posted at Sitapur since August 2000.

5. Common fact on the both applications are that on the basis of matrimonial advertisement published in Hindustan Times dated 27.5.2001, marriage of Rajeev Sharma with Manmohini Sharma was solemnized on 30.6.2001 in accordance with the Hindu religion and Customs in District Meerut. After the marriage there was strained relations between the husband and wife as Smt. Manmohini Sharma started misbehaving with her mother in law and her conduct and behavior has become intolerable. Since, Manmohini Sharma’s father Sri Jag Charan Sharma was a Police Inspector and residing at some distance from the house of Padma Sharma he also started interference in the peaceful matrimonial life of his daughter. He and his daughter had also threatened the family members of Padma Sharma for dire consequences and also threatened to implicate them in false cases of demand of dowry, maltreatment and harassment. After misbehabviour and misconduct of Manmohini Sharma and her father Jag Charan Sharma a complaint letter was addressed to DIG Police, Lucknow and Senior Superintendent of Meerut. On the insistence of Jag Charan Sharma and Manmohini Sharma, Rajiv Sharma had taken a separate accommodation in the house of one Jai Narayan Sharma and started living in the said accommodation, however, Manmohini Sharma had refused to shift in the said accommodation. There was strained relationships between the husband and the wife and Smt. Manmohini Sharma has refused to reconcile the matter. Since Rajeev Sharma was living separately and in spite of notice, his wife did not turn up to live with him at his separate rental accommodation and for securing a suitable job he shifted to Modi Nagar. Meanwhile, Manmohini Sharma arrived at the house of Smt. Padma Sharma and started living there. She had refused to live with her husband and started demanding the transfer of the house in her name so that she may fully secured at her in-law’s place. In the month of May 2002 Rajiv Sharma was also physically assaulted by Manmohini Sharma. Due to such circumstances Rajiv Sharma filed a divorce petition on account of her cruel treatment under Section 13 of the Hindu Marriage Act in Family Court on 21.10.2002. On receiving the notice, Smt. Manmohini Sharma in the form of fabricated will of Krishna Swaroop Sharma, the owner of the house expressing his will to transfer his house in favor of his prospective daughter-in-law (would be wife of Rajiv Sharma). On the basis of said fabricated and forged will she tried to grave his house. Krishna Swaroop Sharma after getting the knowledge about the fabricated will of Krishna Sharma, a complaint was registered in the form of application under Section 156 (3) Cr.P.C before the Chief Judicial Magistrate, Meerut on 20.1.2003.

6. Learned Chief Judicial Magistrate, Meerut treated this application u/s 156(3) Cr.P.C. as complaint case inquiry in respect of which is pending before the court of Magistrate. On 22.1.2003 an application was registered at the office of DIG Police in which it is alleged that an assault was made on Smt. Manmohini Sharma and her father Jag Charan Sharma by resorting to the firing at the house of Smt. Padma Sharma on 20.1.2003 at about 8:15 p.m. It is also alleged that in said incident, a stray pellet injury on the hip was received from the firing made by one Kehar Singh and associate of Sanjeev Sharma. The other shots fired by Sanjeev Sharma aiming towards her, however, did not hit her. On the said averment case crime no.10 of 2003 under Sections 498A, 323, 504, 506, 307 I.P.C and of the Dowry Prohibition Act was registered against the applicants along with Rajeev Sharma, Sanjeev Sharma and Kehar Singh. During the course of investigation, injury report was produced which reveals that there is stray pellet superficial injuries on back at the right shoulder. Injury report reveals that medico legal was made under the direction of of Minister of State of Government of U.P. Investigating Officer had interrogated S.I Rajeev Gupta who had denied the factum of the said incident and also visited of Smt. Manmohini Sharma in an injured condition at the police station and also examined the independent witnesses Natiram, Gulzar and Zabbar who had specifically denied the factum of the alleged incident of firing. On the basis of investigation, after interrogated all the concerned persons the I.O. Was of the view that the F.I.R has been lodged on perse-false allegations and the said story has been concocted only to grab the property belonging to Smt. Padma Sharma.

7. After receiving the final report, learned Magistrate issued notices to Smt. Manmohini Sharma, the first informant, who appeared in the court and filed the protest petition on 8th December, 2004 along with medical reports, copy of injury report, treatment of radiology and electro therapy (X-ray report) and other prescription of the treatment. The learned Magistrate had considered the aforesaid extraneous materials which are not the part of the police report/case diary while issuing the process against the applicants and other persons for facing the trial.

8. The impugned order is therefore based upon the extraneous materials filed along with the protest petition, so, the learned counsel for the applicants contended that cognizance cannot be treated under Section 190(1) (b) Cr.P.C. It is also contended that it is well settled principle of law that the court of Magistrate cannot jumble up the two procedures while passing the order taking the cognizance and issuing the process if the protest petition is separated by such material which are not the part of the police report/case diary then the procedure provide under Chapter-XV of Cr.P.C is to be adopted and after holding the enquiry under Section 202 Cr.P.C. It is also contended by learned counsel for the applicants that the Magistrate to take cognizance under Section 190(1) (b) Cr.P.C if the protest petition is filed along with the other materials which are not the part of the police report therefore the order of taking cognizance cannot be treated an order passed under Section 190(1) (b) Cr.P.C. Since no inquiry as contemplated under Section 202 Cr.P.C is conducted therefore the cognizance cannot be taken and the order issuing process becomes illegal and liable to be set aside.

9. Being aggrieved with this summoning order dated 23.8.2004 u/s 190(1) (6) passed against the applicant u/s 498A, 323, 504, 506, 307, & 3/4 D.P. Act, the applicants preferred revision before the court of Sessions Judge. Revision was dismissed, vide order dated 7.4.2005. Learned Magistrate court and revisional court committed gross illegality in dismissing the revision on erroneous considerations. Learned counsel for the applicant contended that the courts below are patently illegal and cannot be sustainable in the eyes of law, so, the entire proceedings against the applicants are liable to be quashed.

10. Counter affidavit with stay vacation application filed by o.p. no.2 on 5.7.2005 in which the o.p. no.2 clearly denied the averments made by the applicants in their affidavit. It is further stated that applicants are party to aforesaid offence and they are the instrumental encouraging the ill-behaviour and cruelty towards o.p. no.2 Manmohini Sharma. No ground has been made out by applicants for invoking the inherent jurisdiction u/s 482 Cr.P.c. and the present applicant is deserve to dismissed.

11. I have heard the learned counsel for the applicants and learned AGA and perused the record.

12. After submission of final report in criminal case following four courses are open to the Magistrate and he may adopt any one of them as the facts and circumstances of the case may require. (i) to accept final report (ii) to take cognizance of the offence against a person although a final report has been filed by the police in the event sufficient material exist in the C.D. itself, (iii) in the event protest petition filed to treat the same as a complaint petition and prima facie case is made out, to issue precess to the accused (iv) to direct re-investigate the matter.

13. Now, the question arises in this case whether the Magistrate direct to take cognizance under Section 190(1) (b) Cr.P.C. and issue process to the accused without conclusion of the investigating agency in this case.

14. On perusing the summoning order, it is crystal clear that learned Magistrate on the basis of evidence collected by investigating officer and perusing the statement u/s 161 Cr.P.C. of the victim and victim’s father and another witness Smt. Vijai Laxmi and the neighbour of the victim Sita Ram Gupta and Premwati seven affidavit of the witness, injury report and X-ray report is also enclosed in C.D. on perusing the above statement and material on recorddirectly summoned the applicant u/s 498-A, 323, 504, 506, 307 IPC and 3/4 D.P. Act. The basis of summoning of the accused is the material collected by the I.O. during investigation. Learned Magistrate does not take extraneous consideration or any extraneous material. Learned Magistrate summoned the accused only on the material collected during the investigation. In this case, Magistrate is rightly summoned the accused under Section 190(1) (b) Cr.P.C. and in this case Magistrate are not bound to follow the procedure laid down for complaint case.

15. Learned counsel for the applicants relied upon in the case of Pakhandu and others vs. State of U.P. and another passed in Cri. Misc. Application No.3264 of 2000, paras 15 and 16 of the above case are being quoted below : "(15) From the aforesaid decisions, it is thus clear that where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require:-(I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (II) He may take cognizance under Section 190(1) (b) and issue process straightway to the accused without being bound by the sufficient ground to proceed; or (III) He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or (IV) He may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1) (a) upon the origin complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr. P.C. and thereafter decided whether complaint should be dismissed or process should be issued."

16. Where the Magistrate decides to take cognizance of the case under Section 190 (1)(b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation the Magistrate is not bound to follow the procedure laid down in Section 200 and 202 of the Code, and consequently the proviso to Section 202(2) Cr. P.C. will have no application. It would however be relevant to mention that for forming such as independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the diary and other material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records, unless he decides to take cognizance under Section 190(1)(a) of the code and calls upon the complainant to examine himself and the witnesses present, if any, under Section 200."

16. It was held by this Court in the case of Mahendra Pal Sharma vs. State of U.P. reported in 2002 (45) ACC 1127. Para 12 of the above case is being quoted below :- "(12) The learned Magistrate on receiving final report submitted in the case issued notice to the opposite party No.4, the complainant of the case in view of decision of the Apex Court in Abhinandan Jha v. Dinesh Mishra 1967 (4) ACC 306 SC, through no such specific provision is contained in the Cr.P.C. The question as to what is the position when the Magistrate is dealing with the report submitted by the police under Section 173 Cr.P.C. has been answered by the Apex Court in the case of Abhinandan Jha v. Disnesh Mishra (supra) and it was held that the Magistrate on receiving of such report may accept the final report and close the proceedings. But there may be instances when the Magistrate may take a view on consideration of the final report; that the opinion formed by the police is not based on full and complete investigation in which case, the Magistrate will have ample jurisdiction to give directions to the police under Section 156 (3) Cr.P.C. i.e. if the Magistrate feels after considering the final report that the investigation is unsatisfactory or incomplete or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct police to make further investigation under Section 156 (3) Cr.P.C. The police after such further investigation may submit a charge-sheet or against submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms opinion that the facts set out in the final report constitute an offence, under Section 190 (1) (b) Cr.P.C. notwithstanding the contrary opinion of the police expressed in the final report. It was further held in the said case that it is open to the Magistrate to treat the respective protest petitions as complaint and take further proceedings according to law."

17. The above view of Apex Court was against reiterated in the case of Rupan Deol Bajaj (Mrs.) and another Kanwar Pal Singh Gilland another 1995 ACC 786 (SC) and held as below:- "In Abhinanadan Jha v. Dinesh Mishra (supra) the question arose whether a section 173 (1) Cr.P.C. had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet on hi disagreeing with that report. In answering the question this Court first observed that the use of the words "may take cognizance of any offence" in sub section (1) section 190 Cr.P.C. imports the exercise of "judicial discretion" and the Magistrate who receives the report under section 173 Cr.P.C. will have to consider the said report and judicially take a decision whether or not to take cognizance of the offence. The Court then held, in answering the question posed before it, that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet but it was open to the Magistrate to agree or disagree with the police report, if he agreed with the report that there was no case made out for issuing process to the accused he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under section 156 (3). It was further held that it ultimately the Magistrate was of the opinion that the facts set out in the police report constituted on offence he could take cognizance thereof notwithstanding contrary opinion of the police expressed in the report."

18. Thus, it is settled view that the Magistrate on receipt of final report is not debarred from taking cognizance under section 190 (1) (b) of Cr.P.C. and he has not to adopt procedure of complaint case. Therefore, the contention of the learned counsel for the applicants that on receipt of final report, the Magistrate can only take cognizance after adopting procedure of complaint case under section 190 (1) (a) Cr.P.C. is not correct.

19. In this case, there is no irregularity or illegality committed by the Magistrate to follow the procedure under Section 190(1) (b) Cr.P.C. order in impugned magistrate pass summoning of the accused without taking any extraneous material so the order passed by the court below under Section 190(1) (b) Cr.P.C. is on the basis of evidence collected by the I.O. Final report was submitted by Investigating Officer only on considering evidence of defence witnesses. Investigating Officer completely overlooked the evidence of victim and statement of their witnesses. Session court also rejected the revision of the applicants on the said principle of law, so in this case, proceeding is perfectly legal and application u/s 482 Cr.P.C. is liable to be rejected, therefore, the Application u/s 482 No.6652 of 2005 is hereby rejected.

20. In so far as in regard to the Application u/s 482 No.4314 of 2005, applicant nos. 1 to 3 are the near relative but they are not the family members of the opposite party no.2 and they are the native of Pune, New Delhi and Lucknow, respectively. Applicant nos. 1 to 3 are the senior citizen. Applicant no.4 residing in Noida with her husband and working in Noida as Programme Officer in World Health Organization. There is no occasion to the applicants to torture or cruelty toward opposite party no.2. Opposite party no.2 are the next beneficiary in respect of demand of dowry. Learned counsel for the applicants further relied upon the judgements of Apex Court Geeta Mehrotra and another vs. State of U.P. Criminal Appeal No.1674 of 2012 Indian Penal Code, Section 498A ? Criminal case arising one of matrimonial disputes ? A fact borne out of experience cannot be overlooked that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial disputes ? it however, may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified.

21. In the light of the aforesaid aforesaid judgements, the Application u/s 482 No.4314 of 2005 is hereby allowed and the proceeding against the applicants are hereby quashed as per the principle laid down by the Hon’ble Apex Court in the case of Geeta Mehrotra and another vs. State of U.P. (supra).

22. Registry is directed to inform the trial court to proceed with the cases in accordance with law.

Order Date :- 14.3.2019 m.a.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

When an American NRI woman goes to India for a funeral but files a FAKE 498A

Well educated NRI woman, settled in USA for many years even before marriage, who marries another US gree card holder Indian, has kids and even filed for divorce in USA, who NEVER mentioned of violence in the US court case, comes back to India to file 498a !!

Kids born in America and who are American Citizens are practically abducted by her to India (she comes on the pretext that grandma died !!), with a return ticket, purchased by the husband, but refuses to return and files 498a etc in India

Husband fights court after court and wins Supreme court order to take his (American Citizen) kids back

Still Supreme court asks him to DEPOSIT 15 Lakh rupees in the name of this estranged wife

the sad sad saga of marriages in 2014 ..2017 !! yeah this is NOT 30 years ago, this is NOW and here !!


///// 11. After few days, she also filed a FIR against respondent (Sobhan Kodali) and his family members for offence under Section 498A IPC i.e. on 21st April, 2017 but after investigation, the police filed closure report on 1st November, 2017. The fact to be noticed here at this stage is that the very appellant (Lahari Sakhamuri) filed a petition for divorce and custody of minor children in US on 21 st December, 2016, there was no whisper or an averment that there was any domestic violence or abuse either subjected upon her or the minor children by respondent (Sobhan Kodali) and he was informed on 23rd April, 2017, twelve hours before her flight that she would not be returning and does not have a travel date in mind. Respondent (Sobhan Kodali) and his counsel in the US were orally informed of the ex­parte order which was received by respondent (Sobhan Kodali) on 29th April, 2017 through e­mail from the counsel for appellant (Lahari Sakhamuri) in India.

[ ……….. ]


57. We accordingly direct the appellant (Lahari Sakhamuri) to return to US along with both the children, namely, Arthin and Neysa, within a period of six weeks from today. We further direct respondent (Sobhan Kodali) to make all arrangements of stay and travel expenses(including air tickets) of the appellant (Lahari Sakhamuri) and both the children as well as her companion, if any, in their own house or if she is not willing to stay for any personal reasons, make all arrangements for stay at the place of her choice at reasonable cost. In case the appellant (Lahari Sakhamuri) reports that she is not inclined to travel to US along with the minor children, or do not show any interest to accompany the children, the respondent (Sobhan Kodali) shall deposit a sum of Rs. 15 lakhs in the bank account of the appellant (Lahari Sakhamuri) and proof of deposit shall be placed in the Registry of the High Court of Andhra Pradesh who shall thereupon call upon the Consulate General of the US at Hyderabad to take the custody of the minor children, namely, Arthin and Neysa, along with their passports and other travel documents from the appellant (Lahari Sakhamuri) and hand over the same to the respondent (Sobhan Kodali) with a condition for taking the custody of the minor children (Arthin and Neysa) for being taken to US and hand over to the jurisdictional Court in US until further orders are passed in the pending proceedings by the US Court. The appellant (Lahari Sakhamuri) will be at liberty to utilize the money deposited by the respondent (Sobhan Kodali) in connection with her visit to US, if so desired, in future and the respondent (Sobhan Kodali) shall not take any coercive steps against her which in any manner may result in adverse consequences. ///////

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL/CRIMINAL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 3135­316 OF 2019

(Arising out of SLP(Civil) No(s). 15892­15893 of 2018)

LAHARI SAKHAMURI …..Appellant(s)

VERSUS

SOBHAN KODALI …..Respondent(s)

WITH

CRIMINAL APPEAL NO(s). 500 OF 2019
(Arising out of SLP(Crl.) No. 2316 of 2018)

JUDGMENT

Rastogi, J.

1. Leave granted.

2. Both the appeals although arise from two separate orders passed by the High Court of Hyderabad for the State of Telangana and State of Andhra Pradesh dated 8 th February 2018 in a Habeas Corpus Petition filed at the instance of the respondent (Sobhan Kodali) and by the appellant (Lahari Sakhamuri) under the Guardians & Wards Act, 1890 primarily for the custody of the two minor children who were born in the United States on 14 th March, 2012 and 13th October, 2014 and are US citizens and holding US passports. For the custody of children, a tussle was going on between the parents who are residing in US since 2004, ­2005. Their marriage was solemnized on 14th March 2008 in Hyderabad and both are green card holders and not only highly educated but well placed. It appears that some differences cropped up which can be a misunderstanding or failing to understand each other, various efforts were made through conciliation and after the matter came to this Court through the process of mediation, the orders of this Court indicate that lot of efforts were made for reconciliation and at one point of time, it reached to a final stage but unfortunately could not reach to its logical end for various reasons and factors.

3. The persons who are affected are the minor children who have been directly impacted because of the fact that their parents have not been able to resolve their differences. Children are very sensitive and due to the conflict of their parents if could not be resolved at the earliest, the minor children became the victim of time for which they are not at fault but indeed the sufferers. It has to be examined in different perspective also that rights of the child as a progressive approach to the best interest of the child and what is needed in the best interest of the child is the one which has to be deciphered by us in the instant proceedings through the manifold arguments being advanced from both sides keeping in view the principles of law on the subject but still remain a guess work.

4. Before this Court may proceed to examine the question, there are plentitude of judgments of this Court but still each case has to be decided on its own facts and circumstances. Obviously, the ultimate goal which has to be kept in mind is the best interest of the child which is of utmost importance and of a paramount consideration.

5. The brief facts of the case which manifests from the voluminous record placed before us are that the appellant (Lahari Sakhamuri) and respondent (Sobhan Kodali) are the parents of the minor children. Appellant (Lahari Sakhamuri) went to USA for her masters in September, 2004 and thereafter started working in USA. She is a Biomedical Engineer by profession. Respondent (Sobhan Kodali) is also highly qualified and went to USA in July 2005 and is presently a Cardiologist by profession. Their marriage was solemnized according to Hindu rites in Hyderabad on 14 th March, 2008. From this wedlock, son, namely, Arthin and daughter Neysa were born on 14th March, 2012 and 13th October, 2014 and both are US citizens and also hold US passports. The couple purchased house in Pennsylvania on 29th January, 2016 in their joint names and moved to their new home. The son started going to a school in September 2014 and a daughter in December, 2016. Both the children being there in US from their birth, the social and cultural value of US certainly was embedded in both of them.

6. This fact cannot be ruled out that something certainly has gone wrong in their marital relations and it went to an extent where the appellant (Lahari Sakhamuri) took a decision to file petition for divorce and custody of the minor children in US on 21 st December, 2016 on the premise that there was a complete irretrievable breakdown of marriage under the Divorce Code, 1980 prevalent in US. It may be relevant to note that along with the application filed for divorce and custody of minor children, there is a prescribed format which has to be filled disclosing the details of any wrong, if happened physically or abuse has been committed and the fact is that she was completely silent and positive in assertion in her application. Although both the parties were residing together in the same house, with joint legal custody of their children who were residing with them and there was no criminal/abuse history ever in the past.

7. Irretrievable breakdown of marriage can be due to marital difficulties with no reasonable prospect of reconciliation but it appears that in the US before such matrimonial matters are taken up for adjudication on the judicial side, all efforts are being made for conciliation and mediation between the parties which is also being actively taken note of under Section 89 of Code of Civil Procedure of resolving matrimonial and custodial disputes through the process of mediation and which is very successful and effective in India as well.

8. It reveals from the record that on the date of filing of the petition for divorce and custody of minor children by the appellant (Lahari Sakhamuri), i.e. 21st December, 2016 in US, the order came to be passed on the petition directing respondent (Sobhan Kodali) to appear for conciliation conference on 20 th January, 2017 and both the parties were directed not to change the residence of the children which would affect the other party’s ability to exercise custodial rights. It may be appropriate to quote the extract of the order which came to be passed on the application filed by the appellant (Lahari Sakhamuri) which reads as under: “ ORDER OF COURT You, Sobhan Kodali, Defendant/Respondent, have been sued in court to obtain shared legal and primary physical custody of the children, Arthin Kodali, born March 14, 2012 and Neysa Sakhamuri Kodali, born October 13, 2014. You are ordered to appear in person at Room 325, Lehigh County Courthouse, 455 W. Hamilton Street, Allentown, Pennsylvania, on January 20, 2017 at 2:00 p.m. , for XX a conciliation or mediation conference a pretrial conference a hearing before the Court. If you fail to appear as provided by this Order, an order for custody may be entered against you or the Court may issue a warrant for your arrest. You must file with the Court a verification regarding any criminal record or abuse history regarding you and anyone living in your household on or before the initial in­person contact with the Court (including, but not limited to, a conference with a conference officer or judge or conciliation) but not later than 30 days after service of the Complaint or Petition. No party may make a change in the residence of any child which significantly impairs the ability of the other party to exercise custodial rights without first complying with all of the applicable provisions of 23 Pa.C.S. §5337 and Pa.R.C.P. No. 1915.17 regarding relocation. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lehigh County Bar Association Lawyer Referral Service P.O. Box 1324 Allentown, PA 18105­1324 Telephone: 610­433­7094 Americans with Disabilities Act of 1990 The Court of Common Pleas of Lehigh County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the Court, please contact the Court Administrator’s Office at (610) 782­3014. All arrangements must be made at least 72 hours prior to any hearing or business before the Court. You must attend the scheduled conference or hearing. BY THE COURT: 12/21/2016 ________________________/RR Date J.”

9. It reveals from the record that efforts were going on in the process of conciliation and the same were held on 21 st March, 2017 and since the parties could not arrive to any consensus regarding the custody of their children, another conference was scheduled as agreed for 25th March, 2017.

10. By the time parties could reach to a final consensus by the intervention of the trained conciliators which indisputedly play a very pivotal role in matrimonial matters, there was a sad demise of the maternal grandmother of the appellant (Lahari Sakhamuri) and in providing strength and support to the family, the appellant travelled to India with both the minor children on 23 rd March, 2017 with return tickets of 24th April, 2017 and within 20 days of coming to Hyderabad(India) where her family reside, filed a petition in the Family Court, Hyderabad on 12th April, 2017 seeking custody of minor children and injunction against respondent (Sobhan Kodali) under the Guardians and Wards Act, 1890 and she was able to succeed in getting ex­parte interim injunction on 12th April, 2017. It would be appropriate to quote the extract of the ex­parte injunction order passed by the learned Family Court, Hyderabad dated 12th April, 2017 which is as follows:­ “AD INTERIM INJUNCTION IN THE COURT OF JUDGIGE ADDITIONAL FAMILY COURT : CITY CIVIL COURT : HYDERABAD I.A. No. 292 OF 2017 in OP No.433 of 2017 BETWEEN : Smt. Lahari Sakhamuri, W/o Sobhan Kodali, Hindu, aged 34 years, R/o Plot No. 443/A­28, Road No.86, Jubilee Hills, Hyderabad T.S … Petitioner AND Sobhan Kodali, S/o Dr. Jaya Ramesh Kodali, Hindu, aged about 37 years, R/o # 2C85, Bellflower Lane, Centre Valley, Lehigh County, Pennsylvania­18034, USA … Respondent To Sobhan Kodali, S/o Dr. Jaya Ramesh Kodali, Hindu, aged about 37 years, R/o # 2C85, Bellflower Lane, Centre Valley, Lehigh County, Pennsylvania­18034, USA UPON MOTION made unto this court by Sri K. Chaitanya, Counsel for the petitioner seeking the court to grant ad interim injunction restraining the respondent from forcibly taking away the minor children Arthin Kodali and Neysa Sakhamur from the custody of the petitioner pending the above O.P. Upon hearing of the arguments of the counsel for the petitioner this court while issuing notice to respondent returnable by 26.04.2017 doth order restraining respondent from taking away minor children namely Arthin Kodali and Neysa Sakhamur from the custody of the petitioner till 26.04.2017 and that petitioner should not shift the children from the jurisdiction of this court without permission from the court, and that petitioner should also look after food, shelter and medical facilities of the children petition stood posted to 26.04.2017. Given under my hand and the seal of the court on this the 12th day of April, 2017. Sd/­ JUDGE, ADDL. FAMILY COURT CITY CIVIL COURT, HYDERABAD”

11. After few days, she also filed a FIR against respondent (Sobhan Kodali) and his family members for offence under Section 498A IPC i.e. on 21st April, 2017 but after investigation, the police filed closure report on 1st November, 2017. The fact to be noticed here at this stage is that the very appellant (Lahari Sakhamuri) filed a petition for divorce and custody of minor children in US on 21 st December, 2016, there was no whisper or an averment that there was any domestic violence or abuse either subjected upon her or the minor children by respondent (Sobhan Kodali) and he was informed on 23rd April, 2017, twelve hours before her flight that she would not be returning and does not have a travel date in mind. Respondent (Sobhan Kodali) and his counsel in the US were orally informed of the ex­parte order which was received by respondent (Sobhan Kodali) on 29th April, 2017 through e­mail from the counsel for appellant (Lahari Sakhamuri) in India.

12. Immediately, on receiving the oral information, on 26 th April, 2017, emergency petition for interim orders in petition for divorce and custody filed at the instance of the appellant (Lahari Sakhamuri) was filed by respondent (Sobhan Kodali). The said application was contested by the appellant (Lahari Sakhamuri) through Attorney and in defence stated that she had only temporarily relocated to India for attending her grandmother’s funeral and providing emotional support to her mother. After hearing the parties, the US Court passed order on 22 nd May, 2017 for continuing the jurisdiction over the custody matter and granted temporary physical custody of the children to respondent (Sobhan Kodali) with a further direction that children be returned to the jurisdiction of the Court in US by 2 nd June, 2017. It would be appropriate to quote the extract of the order passed by US Court on the emergency custody petition filed by respondent Sobhan Kodali on 22nd May, 2017:­ “IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA CIVIL DIVISION Lahari Sakhamuri ) Plaintiff ) File No.2016­FC­1641 Vs ) Sobhan Kodali ) in custody Defendant ) ORDER AND NOW, this 22nd May, 2017 upon consideration of the Emergency Petition for Relief Requesting an Interim order of custody filed 26.04.2017, by defendant and hearing conducted on 22.05.2017 attended by the defendant / petitioner Sobhan Kodali represented by his legal counsel, Mark B. Dischell, Esquire and plaintiff/respondent, Lahari Sakhamuri having failed to appear for said hearing, but represented by her legal counsel, Mary J B. Eidelman Esquire; IT IS HEREBY ORDERED that : 1. Lehigh County, Pennsylvania, United States of America shall remain the sole home country, home state and country of the parties’ minor children, Arthin Kodali born 14.03.2012 and Neyas Sakhamuri Kodali, born 13.10.2014. 2. This Court shall have sole continuing jurisdiction of this custody matter which was filed by the plaintiff, Lahari Sakhamuri, on 21.12.2016. 3. Pending further order of court, father is granted temporary physical custody of the children; 4. Mother shall return the children to Lehigh County, Pennsylvania, United States of America, to the father’s custody on late than 02.06.2017. 5. Until the children’s return, father shall have telephone and video chat contact with the children each day; 6. Upon her return to this jurisdiction, mother shall not be permitted to travel out of the Commonwealth of Pennsylvania with the minor children without further order of court; 7. The passports of the children shall be held in escrow by the parties’ counsel or another mutually agreeable person; 8. Should the mother fail to return the children to father by 02.06.2017, mother shall pay to father $1,000 each day she does not return the children; 9. In the event mother does not return the children to the father by 02.06.2017, father and/or any of his designees being his father, Jayaramesh Kodali; his mother, Vijaya Bharathi; his cousin, Chaitanya Kadiyala, shall be permitted to receive the children from mother in India and bring them to Lehigh County, Pennsylvania, United States of America; 10. Until such time as mother returns to the United States, she shall be precluded from seeking child support on behalf of the children; 11. A certified copy of this order shall be sent to the America Consulate in India and shall be registered with appropriate court / jurisdiction in Hyderabad, India; 12. Within thirty (30) days of this order, mother shall pay father $10,000 as partial payment towards counsel fee incurred by father in this matter. A final determination on the amount of counsel fees to be paid by mother to father will be made by the court after subsequent hearing which may be requested by either party. BY THE COURT : Sd/­ Daniel K. McCarthy”

13. Thereafter, the respondent (Sobhan Kodali) moved an application under Order 7 Rule 11 CPC in the proceedings instituted in the Family Court, Hyderabad asserting that the Family Court, Hyderabad has no jurisdiction to decide the application for the custody of minor children as they are not the ordinary resident of Hyderabad but that came to be rejected vide order dated 15 th September, 2017 holding that the Family Court, Hyderabad is competent to exercise jurisdiction to examine the application filed at the instance of the appellant (Lahari Sakhamuri) on merits.

14. At this stage, respondent (Sobhan Kodali) preferred appeal to the High Court under Section 19(1) of the Family Courts Act against the order dated 15th September, 2017 passed by the learned Family Court, Hyderabad holding jurisdiction to examine the application filed by the appellant (Lahari Sakhamuri) regarding custody of the minor children under Guardians and Wards Act, 1890. Simultaneously, without any loss of time, respondent (Sobhan Kodali) also filed a writ petition seeking Writ of Habeas Corpus for producing the minor children in the custody of the US Court taking note of the earlier order passed dated 21 st December, 2016 followed with order dated 22nd May, 2017. The appeal and the writ petition were clubbed but were decided by the High Court by separate orders dated 8th February, 2018 holding that the Family Court, Hyderabad has no jurisdiction as the children are not ordinarily residing within the jurisdiction of the Family Court, Hyderabad as provided under Section 9 of the Guardians and Wards Act, 1890. In consequence thereof, application filed by the appellant (Lahari Sakhamuri) stood rejected. At the same time, in the Habeas Corpus Petition, Order came to be passed dated 8th February, 2018. The Court finally ordered as under:­ “36. In view of the above discussion and the legal position, we are of the considered opinion that it would be in the best interest of the minor children to return to the US so that they can enjoy there in the natural environment, receive the love, care and attention of their father and paternal grandparents, resume their school and be with their teachers, peers and friends. 37. Accordingly, we hereby direct the 5th respondent to return the children to the petitioner in India within four (04) weeks from the date of receipt of a copy of this order failing which, the Consulate General of the US at Hyderabad shall take the custody and handover the custody of the children to the petitioner in India or in the US by making their comfortable journey to US. 38. The 5th respondent is also highly educated and was gainfully employed in the US for number of years. Accordingly, we hereby grant liberty to the 5th respondent, whenever she feels to visit the children in US, the petitioner shall make all arrangements i.e., travel, comfortable stay at US and other expenses till the US Court pass directions in the petitions filed by the 5th respondent or she become the gainful in any country, whichever is earlier. 39. As undertaken by the petitioner that, we direct the petitioner that he shall not insist upon costs and fine imposed by the Court of US upon the 5th respondent. 40. We also direct the petitioner that if children are in India and 5th respondent happens to be in India, the children shall remain with 5th respondent. He shall give all access to 5 th respondent to chat with the children on whatsapp and video conference etc.”

15. Both the orders passed by the High Court while disposing of the appeal filed by the respondent (Sobhan Kodali) under Section 19(1) of the Family Courts Act as well as the Habeas Corpus Petition dated 8th February, 2018 came to be challenged by the appellant (Lahari Sakhamuri) in the present appeals.

16. In the pending proceedings, in the Court of Common Pleas of Lehigh County, Pennsylvania Civil Division­Law, further order has been passed on 9th March, 2018 permitting the respondent (Sobhan Kodali) to apply for replacement of US passports on behalf of the minor children. The order is reproduced as under:­ “IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA CIVIL DIVISION – LAW LAHARI SAKHAMURI, NO. 2016­FC­1641 : Plaintiff, : Vs. : SOBHAN KODALI, : IN CUSTODY Defendant, : ORDER OF COURT AND NOW THIS 9th day of March, 2018, upon consideration of the Defendant’s Emergency Petition for Special Relief in Custody, it is hereby ORDERED and DECREED as follows: 1. Defendant’s Emergency Petition for Special Relief is GRANTED; 2. Defendant, Sobhan Kodali, is granted sole legal custody of the minor children, Arthin Kodali, born March 14, 2012, and Neysa Sakhamuri Kodali, born October 13, 2014; 3. Mother’s retention of the children in India is a “wrongful retention” of the children pursuant to the Child Abduction Remedies Act, codified at 23 Pa.C.S. § 5201 et. seq. 4. Defendant, Sobhan Kodali, shall be permitted to apply for replacement U.S. Passports on behalf of the minor children, Arthin Kodali, born March 14, 2012, and Neysa Sakhamuri Kodali, born October 13, 2014, through application of Form DS­11 attached hereto as Exhibit “B”, and without Mother’s consent. 5. The United States Department of State, upon presentation of a Certified Copy of this Order, shall issue replacement passports to Sobhan Kodali, Father of the minor children, even though Father previously requested the entry of the children into the Department’s Child Passport Issuance Alert Program (CPIAP) and received confirmation of the entry of the children into that system on May 24, 2017, via Case Number 1536567. BY THE COURT __________________J.”

17. Before the submissions made by the learned counsel for the parties being canvassed, it may reveal from the orders passed by this Court that keeping in view the personal relations of the spouse and the utmost and paramount consideration of the welfare of the children on a high pedestal and to find out if there is any possibility in resolving their matrimonial differences through the process of mediation which indisputably plays a very pivotal role in such matters. The parties appeared in person on various dates and at one stage, it was sent for mediation as it reveals from Order dated 12th October 2018, the Court appointed Mediator used his good office to find out an amiable solution which may be acceptable to the parties and at one stage from Order dated 29 th October, 2018, it reveals that the parties had reached to an amicable solution in resolving their on­going matrimonial differences by sitting across the table with the intervention of the Court appointed Mediator. But what happened thereafter is really very unfortunate that parties could not reach to any final conclusion and both the learned counsel informed this Court that as the mediation could not have been now possible, the matter may be heard and decided on merits.

18. Learned counsel for the appellant Ms. Malavika Rajkotia, submits that repatriation to US would not be in the best interest of the children and this Court has always held that the best interest of the children cannot be sacrificed on the principle of comity of courts or any other legal principle could not plead in overcoming the best interest of the children which is of primary and paramount consideration. Learned counsel submits that there is a statutory presumption in favour of the mother, under the tender years doctrine and respondent (Sobhan Kodali) is unable to dispel from the pleadings on record in the instant proceedings and she being a fit mother and the best interest of the children is with mother as the primary caretaker and once the custody of the minor children is with mother appellant (Lahari Sakhamuri), it is in the children’s best interest for the court to ensure the psychological well­being and the legal rights of the mother by protecting her autonomy at the first instance, to exercise her choice of location, particularly when she is distressed in her matrimonial home.

19. Learned counsel further submitted that the prima facie assumption may be rebutted in a trial but she cannot be non­suited by not providing her an opportunity in establishing her parental competence and the circumstances leading to protect herself and the children. Learned counsel further submitted that the appellant (Lahari Sakhamuri) and respondent (Sobhan Kodali) are Indian citizens and to separate the primary caregiver from the children under the “best interest of child” rule constitutes invasion of her fundamental right of autonomy guaranteed to her under the law and further submitted that in giving parental rights and privileges, what is to be ensured is the best interest of the children that is admittedly difficult as it is related to their life and welfare in such circumstances is being called by a psychologist as the “least worst option” considering that the ideal of proximity with both parents is not possible in a given situation. The children and their mother are in India and is an accessible jurisdiction for the father being married in India and Indian law applies in a cultural context that is well appreciated here and respondent (Sobhan Kodali) father has means to come to India and meet his children in India.

20. Learned counsel for the appellant further submits that though she has been completely silent in her proceedings instituted in the US Court in a divorce and custody petition of the children as there is a provision in US that one can seek divorce if there is a irretrievable break down of marriage and prospects of conciliation is reasonably ruled out hence there was no occasion for her to indicate what mentally and physically she has suffered and how constrained it was to live due to acute mental, emotional and even physical violence and it is not in the interest of the children that their mother be pinned into an unhappy, abusive situation. It is not in the welfare of the children to be witness to their mother being devalued. It is also not in their interest that they, witness continued toxic conflict of their parents living as a family or even in proximity of collaborative parenting. In such cases, distance with the spouse, with the child as the only point of contact between two parents in their own location is the best solution.

21. Learned counsel for the appellant submits that due to the harassment meted out and humiliation suffered by her and their minor children at the hands of respondent (Sobhan Kodali) husband, no other option was left with her other than staying away from US. Further, the children are admitted in the best school in Hyderabad where they are presently studying. Learned counsel has further submitted that in Nithya Anand Raghavan Vs. State(NCT of Delhi) and another1, this Court has disagreed with the conclusions drawn in Surya Vadanan Vs. State of Tamil Nadu and Others2 laying down the “first strike” principle that weightage should be given to the order of the foreign Court which has jurisdiction and held that the best interest and welfare of the children is of paramount importance and that if handing over of the 2017(8) SCC 454 2015(5) SCC 450 children to the foreign Court’s jurisdiction would harm their best interest and welfare, the Court would not direct their return to the place falling within the jurisdiction of the foreign Court. That applying the principles laid down in the said case, the two minor children who are happily placed in the company of the appellant and her parents, if are entrusted to the foreign court’s jurisdiction, the same may not be in their best interest and welfare of the children. Learned counsel submits that Indian Courts have jurisdiction because the parties had married here and the Hindu Marriage Act applies to Divorce and Section 26 deals with custody. What is being pleaded by the respondent under Order 7 Rule 11 CPC is a mixed question of law and facts and hence could be examined only during the course of the trial but not at this stage.

22. In support of the submission, learned counsel has placed reliance on the decision of this Court in Jasmeet Kaur Vs. Navtej Singh3 holding that the jurisdiction founded on domicile is a matter of trial and cannot be decided summarily and submitted that the custody petition filed under Guardians and Wards Act, 2018(4) SCC 295 1890 has been rejected by the High Court without taking note of the given fact situation and the scope under Order 7 Rule 11 CPC.

23. Per contra, learned senior counsel for the respondent Ms. Meenakshi Arora, referred to the decisions of this Court in Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and Anr.4; Elizabeth Dinshaw Vs. Arvand M. Dinshaw and Another5; V. Ravi Chandran(Dr.) Vs. Union of India and Others6; Nithya Anand Raghavan’s case(supra) and Surya Vadanan’s case(supra),and taking assistance thereof, submitted that two minor children were born in US and both of them are US citizens and are school goers and they enjoyed their schooling (which is evident from the photographs filed along with the additional documents) and removal of children from the US despite the Order of the US Court affects their future and the same may not be in their best interest.

24. Learned counsel further submitted that the appellant (Lahari Sakhamuri) and respondent (Sobhan Kodali) started their 1984(3) SCC 698 1987(1) SCC 42 2010(1) SCC 174 matrimonial life in the US and been there for almost 14 years, they are being acclimatized with that culture and in their married life, except for duration on short visit to India, they spent their good time in US and removing the children from the US, in the given circumstances, may not be in their best interest. Learned counsel submitted that the appellant (Lahari Sakhamuri) had herself admitted that children were in shared custody with respondent (Sobhan Kodali) and she was never subjected to domestic violence at any given point of time and she had invoked the jurisdiction of US Court for divorce and custody of minor children based on their residence and, therefore, it may not be open for her to disregard the orders of US Court, more specially the order dated 22 nd May, 2017 whereby respondent (Sobhan Kodali) was granted temporary physical custody of the children and appellant (Lahari Sakhamuri) was directed that minor children should be returned to the jurisdiction of US Court by 2nd June, 2017.

25. Learned counsel submitted that from the material which has come on record, even inference cannot be drawn that there could be any harm caused to the minor children in returning to their native state, i.e. US. Moreover, in the proceedings on behalf of the appellant (Lahari Sakhamuri) filed before the US Court, it is her own admission that there was no domestic violence having perpetrated upon her nor she was subjected to cruelty rather had asked for shared custody of children along with respondent (Sobhan Kodali) and in the given circumstances, her unilateral decision to return to India cannot deprive the minor children in terms of the love, attention, care and facilities, amenities, upbringing and environment to which they are accustomed to while in the US. No doubt, it is not the decision of the minor children to remain in India away from their father and their school and their peers. The US Court has the most intimate contact and closest concern to decide on the issue of minor children which has been extensively examined by the High Court and finding has been recorded under the impugned judgment upholding children best interest.

26. Learned counsel submitted that best interest of children has been sidelined while deciding to stay back in India with the minor children who are admittedly US citizens and were permanently residing in US till 23rd March, 2017 when they were removed from US in contravention of the Order dated 21 st December, 2016 passed by the US Court and forcibly separated from their father respondent herein and the environment in US which children were experiencing, is their natural environment and in the given circumstances, detention of the children in India is unlawful and in violation of Child Abduction Remedies Act of minor children applicable in US and US Court has rightly directed the appellant (Lahari Sakhamuri) to bring back the children to US Court by 2 nd June, 2017 and the findings which have been recorded by the High Court are based on cogent available material on records and needs no further interference.

27. Learned counsel further submits that the minor children are not ordinary residents of the jurisdiction of Family Court, Hyderabad as defined under Section 9 of the Guardians and Wards Act, 1890 as both are natural born US citizens and came to India only on 23rd March, 2017 and within 20 days, application came to be filed by the appellant (Lahari Sakhamuri) on 12 th April, 2017 before the Family Court, Hyderabad for the custody of the children with ex­parte interim injunction passed by the learned Court and even from the pleadings, nothing is borne out that how the Ld. Family Court, Hyderabad was having jurisdiction to entertain application under Guardians and Wards Act, 1890 and in the given circumstances, the application filed by the respondent (Sobhan Kodali) under Order 7 Rule 11 CPC was arbitrarily rejected by the Ld. Family Court and that was reviewed by the High Court on the material available on record and the finding has been recorded holding that the children are not the ordinary residents of jurisdiction of the Family Court, Hyderabad where an application was filed by the appellant (Lahari Sakhamuri) for custody of the children and no error was committed by the High Court in rejecting the application filed by the appellant (Lahari Sakhamuri) under Guardians and Wards Act, 1890 for lack of jurisdiction and merely because their marriage was solemnized in Hyderabad would not confer a territorial jurisdiction to the Family Court, Hyderabad for the purpose of custody of the minor children under the Guardians and Wards Act, 1890.

28. Learned counsel further submits that both the issues in respect of the custody of the minor children and rejection of an application due to lack of territorial jurisdiction entertained by learned Family Court, Hyderabad has been discussed in detail under the two separate impugned judgments by the High Court and needs no further interference of this Court.

29. We have heard learned counsel for the parties and with their assistance perused the record and also the plentitude of judgments cited of this Court. Before we proceed, it will be appropriate to take note of what transpired between the hearing of the instant appeals. On 26th March, 2018, this Court directed the appellant (Lahari Sakhamuri) and respondent (Sobhan Kodali) to remain personally present on the next date of hearing which was 9 th April, 2018. During pendency of the proceedings, respondent (Sobhan Kodali) was allowed to meet children possibly keeping in view the amicable solution, if possible, to be arrived at between the parties and at one stage by Order dated 12th October, 2018, the parties were granted liberty to resolve their issues inter se amicably and to facilitate the parties in arriving at an amicable solution, a senior counsel was requested to mediate which was voluntarily accepted by the parties. Pursuant thereto, possibilities of settlements were explored and at one stage, settlement was also arrived at possibly acceptable to the parties as it reveals from the Order dated 29 th October, 2018 of this Court. It will be appropriate to quote the extract of the order dated 29th October, 2018 followed by Order dated 27 th November, 2018, which are as under:­ Order dated 29th October, 2018 “Both the respondent/husband and petitioner/wife are present. We are extremely happy that they have decided to forgive each other, forget the past and take their family life forward. Mrs. Lahri Sakhamuri/petitioner has submitted that she will withdraw all the cases filed by her in India and abroad and she does not want to pursue any criminal proceedings. Since Mr. Sobhan Kodali/respondent has to go back to United States tomorrow i.e. on 30.10.2018, post this matter on 14.11.2018 for formal orders, on the basis of the arrangement the parties have jointly made. We stay all the pending cases between Mrs. Lahari Sakhamuri and Sobhan Kodali, both civil and criminal. We also restrain them from instituting any case against each other or the members of their family or filing any petition/complaint against each other or their family members, without express permission from this Court. We record our appreciation for the strenuous efforts taken by Mr. Gurukrishna Kumar, learned senior counsel, for facilitating the reconciliation.” Order dated 27th November, 2018 “Learned counsel for both sides on instructions submit that they will withdraw all the cases filed against each other either in India or in United States. We direct the petitioner­Mrs. Lahari Sakhamuri to withdraw all the cases in both the jurisdictions within a period of one week from today. Let the respondent also withdraw all the cases filed both in India or in United States within the same period of time. Learned counsel for the respondent­husband on instructions submits that within 10 days, he will arrange for the passport of the minor child­Arthin from U.S. Consulate. It is also stated that husband will take all necessary steps for resolving all issues, if any, pertaining to the immigration and Visa status of the petitioner within the same period of time. Once such issues are cleared, we direct the petitioner to travel to U.S. along with her husband and children within a week of obtaining such clearances. We record our appreciation for the strenuous efforts taken by Shri Gurukrishna Kumar, learned senior counsel for assisting the parties to arrive at an amicable settlement and for reunion. List on mentioning by either side.”

30. What unfolded thereafter may not be appropriate for this Court to take notice but the fact remains that agreement arrived at between the parties could not be taken to its logical end. It would have been better and in the interest of the parties themselves to amicably resolve their differences for their better future but as they have failed to do so, the judicial process has to intervene to decide the case on merits based on judicial precedents.

31. In the instant case, the facts on record clearly manifest that parties were residing in US since 2004­2005 and their marriage was solemnized in Hyderabad on 14th March, 2008. Both the children were born in US on 14 th March, 2012 and 13th October, 2014 and are US citizens with US passports. Notably, the appellant (Lahari Sakhamuri) filed application for divorce and custody of minor children in the US Court on 21 st December, 2016 and order came to be passed by the US Court on 21st December, 2016. Despite that interim order, the appellant (Lahari Sakhamuri) came to India on 23rd March, 2017 and within 20 days of her arrival in India, filed an application on 12th April, 2017 for custody of minor children in the Family Court, Hyderabad concealing her application for custody filed in the US Court. She also did not disclose that an order came to be passed by the US Court against her dated 22 nd May, 2017 after hearing the counsel for the parties. In the given facts and circumstances, we find no difficulty in upholding the opinion of the High Court that the minor children were not ordinary residents of Hyderabad(India) as envisaged under Section 9(1) of the Guardians and Wards Act, 1890. Resultantly, the application for custody of minor children filed before the Family Court, Hyderabad is rightly rejected by the High Court in exercise of power under Order 7 Rule of CPC. At the same time, when the orders have been passed by the US Court, the parties cannot disregard the proceedings instituted before the US Court filed at the instance of the appellant (Lahari Sakhamuri) who is supposed to participate in those proceedings.

32. The judgment relied upon by the learned counsel for the appellant of Jasmeet Kaur’s case(supra) may not be of any assistance for the reason that it was a case where one of the child was born in India which was one of the reason prevailed upon this Court to hold that principle of comity of courts or principle of forum convenience cannot determine the threshold bar of jurisdiction and when paramount consideration is the best interest of the child, it can be the subject­matter of final determination in proceedings and not under Order 7 Rule 11 CPC. In our considered view, the application for custody of minor children filed at the instance of the appellant was rightly rejected by the High Court under the impugned judgment, in consequence thereof, no legal proceedings in reference to custody of the minor children remain pending in India.

33. The custody of minor children has been considered difficult in adjudication by the Courts apart from raising delicate issues, especially when the spouses are non­resident Indians(NRIs).

34. This Court in Surinder Kaur Sandhu’s case(supra) was concerned with the custody of a child who was British citizen by birth whose parents had been settled in England after their marriage. A child was removed by the husband from the house and was brought to India. The wife obtained a judicial order from the UK Court whereby the husband was directed to hand over the custody of a child to her. The said order was later confirmed by Court of England and thereafter the wife came to India and filed a writ petition in the High Court of Punjab and Haryana praying for custody and production of the child which came to be dismissed against which the wife appealed to this Court. This Court keeping in view the ‘welfare of the child’, ‘comity of courts’ and ‘jurisdiction of the State which has most intimate contact with the issues arising in the case’ held thus:­ “10. We may add that the spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver. The boy is a British citizen, having been born in England, and he holds a British passport. It cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody. The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum­shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well­ being of the spouses and the welfare of the offsprings of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the courts of that State to assume jurisdiction to enforce obligations which were incurred therein by the spouses(See International Shoe Company v. State of Washington [90 L Ed 95 (1945) : 326 US 310] which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case.) It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy.”

35. In Elizabeth Dinshaw’s case(supra), this Court held that it is the duty of courts in all countries to see that a parent doing wrong by removing children out of the country does not gain any advantage by his or her wrongdoing and was guided by the factors such as the longer time spent by the child in the US in which the child was born and became US citizen and also the fact that the child has not taken roots in India and was still not accustomed and acclimatized to the conditions and environment obtaining in the place of his origin in the United States of America. This Court took note of the fact that the child’s presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child in some school in Pune.

36. In V. Ravi Chandran(Dr.)’s case(supra), this Court was concerned with the custody of the child removed by a parent from one country to another in contravention of the orders of the Court where the parties had set up their matrimonial home. This Court took note of the English decisions, namely L(Minors) in re7 and McKee Vs. McKee8 and also noticed the decision of this Court in Elizabeth Dinshaw’s case(supra) and Dhanwanti Joshi Vs. Madhav Unde9 keeping into consideration the fact that the child was left with his mother in India for nearly twelve years, this Court held that it would not exercise its jurisdiction summarily to return the child to the US on the ground that his removal from US in 1984 was contrary to the orders of US Courts. The relevant portion is as under:­ ”29. While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, the court in the country to which the child has been removed must first consider the question whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order (1974) 1 All ER 913(CA) (1951) AC 352 1998(1) SCC 112 a parent to return custody of the child to the country from which the child was removed and all aspects relating to the child’s welfare be investigated in a court in his own country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of the child including stability and security, loving and understanding care and guidance and full development of the child’s character, personality and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case.

30. However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interests of the child. The indication given in McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942 (PC)] that there may be cases in which it is proper for a court in one jurisdiction to make an order directing that a child be returned to a foreign jurisdiction without investigating the merits of the dispute relating to the care of the child on the ground that such an order is in the best interests of the child has been explained in L (Minors), In re [(1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)] and the said view has been approved by this Court in Dhanwanti Joshi [(1998) 1 SCC 112] . Similar view taken by the Court of Appeal in H. (Infants), In re [(1966) 1 WLR 381 (Ch & CA) : (1966) 1 All ER 886 (CA)] has been approved by this Court in Elizabeth Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Cri) 13].”

37. This Court once again reiterated the principles of the closest concern, most intimate contact with the issues arising in the case, natural habitat of the minor child, best interest of the child and comity of Courts. This Court eventually directed the child to be taken to US from where he was removed to enable the parties to establish their right in the native state of the child, i.e. US.

38. In Surya Vadanan’s case(supra), it was a case where the spouses were of Indian origin and later the husband became the citizen of UK. They got married in India and had two daughters in UK. The wife also became a British citizen and had a British passport. After matrimonial dispute arose between them, the wife returned to India with her daughters and filed a petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 seeking divorce in the Family Court. At the same time, husband filed a petition in the High Court of Justice. The said Court had passed an order making the children wards of the Court during their minority or until further orders of the court and the wife was directed to return the children to the jurisdiction of the foreign court. This Court applied the principles of (i) “the first strike”, i.e the UK Court had passed effective and substantial order declaring the children of the parties as wards of that court, (ii) the comity of courts and (iii) the best interest and welfare of the child. It also held that the “most intimate contact” doctrine and the “closest concern” laid down in Surinder Kaur Sandhu’s case(supra) are very much alive and cannot be ignored only because their application might be uncomfortable in certain situations. The Court also reiterated that the best interest and welfare of the child are of paramount importance which shall always be kept in mind by the courts while adjudicating the disputes.

39. This was followed by a three Judge Bench of this Court in Nithya Anand Raghavan’s case(supra) in which one of us(Justice Khanwilkar) was a party. In that case, the couple married on 30 th November, 2006 at Chennai and shifted to UK in early 2007. Disputes arose between the spouse. The wife had conceived in December, 2008 came to New Delhi in June 2009 and stayed there with her parents and she gave birth to a girl child in August, 2009 at Delhi. After the husband arrived in India, the couple went back to UK in March, 2010 and following certain unsavoury events, the wife and the daughter returned to India in August 2010. After exchange of legal correspondence, the wife and her daughter went back to London in December 2011. In July, 2014, the wife returned to India along with her daughter and early 2015 the child became ill and was diagnosed with cardiac disorder and due to the alleged violent behavior of her husband filed complaint against him at the GAW Cell, New Delhi. In 2016, husband filed custody/wardship petition in UK to seek return of the child. He also filed habeas corpus petition in 2017 in Delhi High Court which was allowed. The matter was brought before this Court by the wife. This Court heavily relied upon its earlier judgment in Dhanwanti Joshi’s case(supra) which in turn referred to Mckee’s case(supra) where the Privy Council held that the order of foreign court would yield to the welfare of the child and that the comity of courts demanded not its enforcement, but its grave consideration. This Court also relied upon the judgment in V. Ravi Chandran’s case(supra) and held that the role of the High Court in examining the cases of custody of a minor is on the touchstone of principle of parents patriae jurisdiction, as the minor is within the jurisdiction of the Court. This Court further held that the High Court while dealing with the petition for issuance of habeas corpus concerning a minor child in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances into consideration. It was held further by this Court that each case must depend on the totality of the facts and circumstances brought before it while considering the welfare of the child which is of paramount consideration and the order of the foreign Court must yield to the welfare of the child and the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. It was further observed that writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or resort to any proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised. This Court has disapproved paragraph 56 (a) to (d) in Surya Vadanan’s case(supra) which reads as follows:­ “56. However, if there is a pre­existing order of a foreign court of competent jurisdiction and the domestic court decides to conduct an elaborate inquiry (as against a summary inquiry), it must have special reasons to do so. An elaborate inquiry should not be ordered as a matter of course. While deciding whether a summary or an elaborate inquiry should be conducted, the domestic court must take into consideration: (a) The nature and effect of the interim or interlocutory order passed by the foreign court. (b) The existence of special reasons for repatriating or not repatriating the child to the jurisdiction of the foreign court. (c) The repatriation of the child does not cause any moral or physical or social or cultural or psychological harm to the child, nor should it cause any legal harm to the parent with whom the child is in India. There are instances where the order of the foreign court may result in the arrest of the parent on his or her return to the foreign country. [Arathi Bandi v. Bandi Jagadrakshaka Rao, (2013) 15 SCC 790 : (2014) 5 SCC (Civ) 475] In such cases, the domestic court is also obliged to ensure the physical safety of the parent. (d) The alacrity with which the parent moves the foreign court concerned or the domestic court concerned, is also relevant. If the time gap is unusually large and is not reasonably explainable and the child has developed firm roots in India, the domestic court may be well advised to conduct an elaborate inquiry.”

40. As regards clauses (a) to (c) of paragraph 56 above, this Court termed the same as tending to drift away from the exposition in Dhanwanti Joshi’s case(supra) and V. Ravi Chandran’s case(supra) and with regard to clause (d), this Court disagreed with the same, and it was finally concluded as under:­ “69. We once again reiterate that the exposition in Dhanwanti Joshi [Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112] is a good law and has been quoted with approval by a three­Judge Bench of this Court in V. Ravi Chandran (2) [V. Ravi Chandran (2) v. Union of India, (2010) 1 SCC 174 : (2010) 1 SCC (Civ) 44] . We approve the view taken in Dhanwanti Joshi, inter alia, in para 33 that so far as non­ Convention countries are concerned, the law is that the court in the country to which the child is removed while considering the question must bear in mind the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration. The summary jurisdiction to return the child be exercised in cases where the child had been removed from its native land and removed to another country where, may be, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education, for these are all acts which could psychologically disturb the child. Again the summary jurisdiction be exercised only if the court to which the child has been removed is moved promptly and quickly. The overriding consideration must be the interests and welfare of the child.”

41. The essence of the judgment in Nithya Anand Raghavan’s case(supra) is that the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child etc. cannot override the consideration of the best interest and the welfare of the child and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child.

42. In Kanika Goel Vs. State of Delhi through Station House Officer and another10 in which one of us(Justice Khanwilkar) is a member, the marriage of the couple was solemnized in New Delhi and accordingly girl child was born in US in 2014. The mother along with the child came to India in December, 2016 with their return ticket to Chicago in January 2017. She filed a divorce petition after coming to India in Delhi and husband filed emergency custody petition in US Court. Wife obtained an ex­parte order from Family Court, Delhi restraining husband from removing the child 2018(9) SCC 578 from India on 11th January, 2017. Husband obtained ex­parte order for interim sole custody on 13 th January, 2017 from foreign Court. At the same time, husband filed Habeas Corpus Petition in Delhi High Court which ordered the mother to comply with the order of UK Court. This Court, after taking into consideration totality of facts and circumstances, observed that the custody of the minor girl child to remain with the appellant mother until she attains the age of majority or the court of competent jurisdiction, trying the issue of custody of the minor.

43. The expression “best interest of child” which is always kept to be of paramount consideration is indeed wide in its connotation and it cannot remain the love and care of the primary care giver, i.e., the mother in case of the infant or the child who is only a few years old. The definition of “best interest of the child” is envisaged in Section 2(9) of the Juvenile Justice (Care & Protection) Act, 2015, as to mean “the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identify, social well­ being and physical, emotional and intellectual development”.

44. We shall now consider as to whether the facts and circumstances of the present case warrant summary enquiry into the question of custody of minor children, namely, Arthin and Neysa (as no legal proceedings between the parties remain pending in India) or whether an elaborate enquiry procedure will be necessary for entrustment of custody of the two minor children to the appellant (Lahari Sakhamuri) until they are produced before the US Court.

45. Indisputedly, the appellant (Lahari Sakhamuri) and respondent (Sobhan Kodali) both were residing in US since 2004­ 2005 and are well educated as the appellant (Lahari Sakhamuri) did Biomedical Engineering and the respondent (Sobhan Kodali) is a Cardiologist by profession. Their marriage was solemnized on 14 th March, 2008 and two loving children namely, Arthin and Neysa, were born from this wedlock in US on 14 th March, 2012 and 13th October 2014. Both have started going to school. They purchased a house in their joint name and moved to the new house in January, 2016. Something must have been gone wrong between them which compelled the appellant (Lahari Sakhamuri) in filing a divorce and custody petition of the minor children in the Court of Common Pleas of Lehigh County, Pennsylvania Civil Division on 21st December, 2016, seeking divorce, equitable distribution of marital property, primary physical and shared legal custody of the minor children. In the divorce petition, the appellant (Lahari Sakhamuri) made a specific averment about the permanent residence in US for both the parties and securing children’s custody and also admitted that both the minor children were residing in US. It was also admitted that both the children were in joint custody of the appellant (Lahari Sakhamuri) and respondent (Sobhan Kodali) and they resided at 2085, Bellflower Lane, Canter Valley, Pennsylvania 18034.

46. It was her own admission in the declaration form annexed to the application that no mode of domestic violence or abuse was ever subjected upon her or upon the minor children by the respondent (Sobhan Kodali). The respondent (Sobhan Kodali) had purchased to and fro tickets of the appellant (Lahari Sakhamuri) and of minor children as also of his mother in law who was staying together in their matrimonial home, US with return tickets of 24th April, 2017 but after coming to India on 23rd March, 2017, because of the alleged death of her maternal grandmother, the appellant (Lahari Sakhamuri) refused to return back and was advised to file a Guardianship Petition before the Family Court, Hyderabad on 12 th April, 2017 and took the ex­parte order concealing the material facts from the Family Court that such a petition is pending in US filed at her instance and there was an order passed on 21 st December, 2016 restraining both the parties not to change residence of the children which would affect the other parties ability to exercise custodial rights.

47. It is not in dispute that both the minor children, from the very inception of their birth, till removal from the US on 23 rd March, 2017 were living with their parents in US. This fact was admitted by the appellant (Lahari Sakhamuri) also in the guardianship petition filed before the Family Court, Hyderabad and also in the divorce and custody petition filed by her in US and only after hearing learned counsel for the parties, order was passed by the US Court on 22nd May, 2017 on the emergency custody petition granting temporary physical custody of the children with further direction to the appellant (Lahari Sakhamuri) to return along with the children to the jurisdiction of US Court on 2 nd June, 2017. In case she was aggrieved by the order dated 22 nd May, 2017 passed by the US Court after affording an opportunity of hearing which she contested through her Attorney, all the courses were available to her to assail the order of the Court. Since the appellant (Lahari Sakhamuri) failed in returning the children to the jurisdiction of the US Court despite order dated 22nd May, 2017, there was no option left with the respondent (Sobhan Kodali) but to file a Habeas Corpus Petition and pray that the children be repatriated back to US in compliance of the order of the US Court.

48. It is true that this Court has to keep in mind the best interest of the child as the paramount consideration. The observations of the US Court clearly show that principle of welfare of the children has been taken into consideration by the US Court in passing of the order as it reiterates that both the parties are necessary for proper upbringing of the children and the ultimate decision of custody and guardianship of the two minor children will be taken by the US which has the exclusive jurisdiction to take the decision as the children happened to be the US citizens and further order been passed on the respondent’s emergency petition with special release in custody on 9th March, 2018 permitting the respondent (Sobhan Kodali) to apply for US passports on behalf of the minor children without appellant (Lahari Sakhamuri) being mother’s consent. The appellant (Lahari Sakhamuri) cannot disregard the proceedings instituted at her instance before the US Court and she must participate in those proceedings by engaging solicitors of her choice to espouse her cause.

49. The crucial factors which have to be kept in mind by the Courts for gauging the welfare of the children equally for the parent’s can be inter alia, delineated, such as (1) maturity and judgment; (2) mental stability; (3) ability to provide access to schools; (4) moral character; (5) ability to provide continuing involvement in the community; (6) financial sufficiency and last but not the least the factors involving relationship with the child, as opposed to characteristics of the parent as an individual.

50. While dealing with the younger tender year doctrine, Janusz Korczar a famous Polish­Jewish educator & children’s author observed “children cannot wait too long and they are not people of tomorrow, but are people of today. They have a right to be taken seriously, and to be treated with tenderness and respect. They should be allowed to grow into whoever they are meant to be ­ the unknown person inside each of them is our hope for the future.” Child rights may be limited but they should not be ignored or eliminated since children are in fact persons wherein all fundamental rights are guaranteed to them keeping in mind the best interest of the child and the various other factors which play a pivotal role in taking decision to which reference has been made taking note of the parental autonomy which courts do not easily discard.

51. The doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child etc., cannot override the consideration of the best interest and the welfare of the child and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child. Taking a holistic consideration of the entire case, we are satisfied that all the criteria such as comity of courts, orders of foreign court having jurisdiction over the matter regarding custody of the children, citizenship of the spouse and the children, intimate connect, and above all, welfare and best interest of the minor children weigh in favour of the respondent (Sobhan Kodali) and that has been looked into by the High Court in the impugned judgment in detail. That needs no interference under Article 136 of the Constitution of India.

52. Before we conclude, we would like to observe that it is much required to express our deep concern on the issue. Divorce and custody battles can become quagmire and it is heart wrenching to see that the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents. The eventful agreement about custody may often be a reflection of the parents’ interests, rather than the child’s. The issue in a child custody dispute is what will become of the child, but ordinarily the child is not a true participant in the process. While the best­ interests principle requires that the primary focus be on the interests of the child, the child ordinarily does not define those interests himself or does he have representation in the ordinary sense.

53. The child’s psychological balance is deeply affected through the marital disruption and adjustment for changes is affected by the way parents continue positive relationships with their children. To focus on the child rights in case of parental conflict is a proactive step towards looking into this special situation demanding a specific articulation of child rights.

54. The judicial resolution of a custody dispute may permanently affect or even end the parties’ legal relationship but the social and psychological relationship will usually continue and it seems appropriate that a negotiated resolution between the parents is preferable from the child’s perspective for several reasons. A child’s future relationship with each of his parents may be better maintained and his existing relationship is less damaged by a negotiated settlement than by one imposed by a court after adversarial proceedings.

55. In the present case, there is every possibility that the parties may reconcile and start over their relationship afresh, at least for the sake of happiness of their own off­spring if for no other reason. The parties are indeed mature and sensible enough to understand that the ordinary wear and tear of married life has to be put up in within the larger interests of their own happiness and of the healthy, normal growth and development of their offspring, whom destiny has entrusted to their joint parental care. Spouses must come over the temperamental disharmony which usually exists in every marriage, rather than magnifying it with impulsive desires and passions. Parents are not only caretakers, but they are instrumental in the development of their child’s social, emotional, cognitive and physical well­being and work harmoniously to give their children a happy home to which they are justly entitled to. We hope and trust that the parties will forget and forgive their differences and join hands together in providing the congenial atmosphere which may be good not for themselves but also for the development of their minor children.

56. In our view, the best interest of the children being of paramount importance will be served if they return to US and enjoy their natural environment with love, care and attention of their parents including grandparents and to resume their school and be with their teachers and peers.

57. We accordingly direct the appellant (Lahari Sakhamuri) to return to US along with both the children, namely, Arthin and Neysa, within a period of six weeks from today. We further direct respondent (Sobhan Kodali) to make all arrangements of stay and travel expenses(including air tickets) of the appellant (Lahari Sakhamuri) and both the children as well as her companion, if any, in their own house or if she is not willing to stay for any personal reasons, make all arrangements for stay at the place of her choice at reasonable cost. In case the appellant (Lahari Sakhamuri) reports that she is not inclined to travel to US along with the minor children, or do not show any interest to accompany the children, the respondent (Sobhan Kodali) shall deposit a sum of Rs. 15 lakhs in the bank account of the appellant (Lahari Sakhamuri) and proof of deposit shall be placed in the Registry of the High Court of Andhra Pradesh who shall thereupon call upon the Consulate General of the US at Hyderabad to take the custody of the minor children, namely, Arthin and Neysa, along with their passports and other travel documents from the appellant (Lahari Sakhamuri) and hand over the same to the respondent (Sobhan Kodali) with a condition for taking the custody of the minor children (Arthin and Neysa) for being taken to US and hand over to the jurisdictional Court in US until further orders are passed in the pending proceedings by the US Court. The appellant (Lahari Sakhamuri) will be at liberty to utilize the money deposited by the respondent (Sobhan Kodali) in connection with her visit to US, if so desired, in future and the respondent (Sobhan Kodali) shall not take any coercive steps against her which in any manner may result in adverse consequences.

58. It is further made clear that the observations which has been made by us are only for the limited purpose of engaging in summary inquiry for consideration in the petition of Habeas Corpus and will be of no assistance to either party in the custody proceedings pending in the US Court which indeed will be decided on its own merits.

59. While parting, we express our word of gratitude for the sincere efforts put in by Mr. Gurukrishna Kumar, Senior Advocate, in persuading the parties to arrive at an amicable settlement.

60. Consequently, Civil Appeals arising out of SLP(Civil) Nos. 15892­15893 of 2018 are dismissed. No costs.

61. The Criminal Appeal arising out of SLP(Crl.) No. 2316 of 2018 stands disposed of in the above terms.

62. Pending application(s), if any, stand disposed of.

………………………….…J. (A.M. KHANWILKAR)

…………………………….J. (AJAY RASTOGI)

NEW DELHI March 15, 2019

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Circumstantial evidence be cogent, firm, definite & unerringly point towards accursed guilt. Else acquittal! All HC


Accused cannot be convicted solely on the basis of circumstantial evidence which is NOT forming a complete chain which leads to the definite and only conclusion ONLY that accused committed the crime. Accused person acquitted of murder


/////39. In the case of Padala Veera Redely v. State of Andhra Pradesh 1991 SCC (Crl.) 407 the Apex Court laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: 1. The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; 2. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; 3. The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that with in all human probability the crime was committed by the accused and none else; and. 4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

42. These circumstances raise only suspicion against the appellants but it is well settled that suspicion, howsoever strong it may be, cannot take the place of proof. In any view of the matter, on the basis of the circumstances, it is not possible to draw an irresistible conclusion, which is in compatible with innocence of the appellants so as to complete the chain. It is well settled that in a case of circumstantial evidence, the chain of circumstances must be complete and in case there is any missing link therein, the same cannot form the basis for conviction. A strong suspicion, no doubt, exists against the appellants but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case.
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Allahabad High Court

Bhanu Pratap Gangwar And Rajesh … vs State Of U.P. on 24 August, 2007

Author: I Murtaza

Bench: I Murtaza, S Bala

JUDGMENT Imtiyaz Murtaza, J.

1. By means of this appeal the appellants have challenged the judgment and order 22.7.2005 passed in S.T. No. 458 of 2001 by Addl. Sessions Judge, Court No. 3, Pilibhit whereby the appellants have been convicted and sentenced to imprisonment for life under Section 302/34 I.P.C. with a Fine of Rs. 5,000/- each and in default of payment of fine, further 3 month’s simple imprisonment and further convicted and sentenced the appellants to one year R.I. under Section 25 of Arms Act in S.T. No. 459 and 460 of 2001.

2. On the basis of an information given by Radhey Shyam, Assistant Station Master, Bisalpur that some persons have killed a passenger inside the Train No. 166 Down when it stopped at Bisalpur Station, the F.I.R. was registered at case crime No. 185 of 2000 under Section 302 I.P.C. at Police Station G.R.P. Pilibhit. After registration of the F.I.R. S.I. Jai Prakash commenced the investigation. He recorded the statements of Assistant Station Master, Radhey Shyam and Munna. Thereafter, he reached at the Railway Station, Bisalpur and recorded the statement of Bhoopram, Station Master, Bisalpur. The dead body of unknown person was identified as of Jai Prakash Agnihotri. On his dictation HCP Sachidanand Rai prepared the inquest memo, which is Ext. Ka-9. He prepared letter to R.I., letter to C.M.O., Photo Lash and challan lash, which are Ext. Ka-10 to 12. The dead body was sealed and handed over to constable Om Prakash Misra and constable Rakesh Pandey for carrying it to the mortuary for post mortem examination. He collected blood smeared and plain earth from coach No. 72294 where the dead body was lying and prepared its recovery memo, which is Ext. ka-15. He also collected two empty cartridges of 12 bore and prepared its recovery memo, which is Ext. Ka-16. He also recorded the statement of Manoj Kumar, brother of the deceased. He also recorded the Statements of S.I. Narendra Singh Tewatiya, Rajendra Kumar Jaiswal, Murlidhar and Mohd. Yunus and Bhoopram Station Master. He also recorded the statement of Nanhi Devi and Vinod, brother of the deceased. He also recorded the statement of an eyewitness Atul Kumar Saxena. On 26.9.2000 he prepared the site plan, which is Ext. Ka-17. He recorded the statements of Bhola, Ved Prakash Misra, Chaukidar, and Basant Lal. One scooter, which was left on the road by the assailants was recovered by S.I. Narendra Singh Tewatiya and deposited by him at P.S. Bisalpur. In the Dickey of the scooter a licence in the name of Beniram Gangwar was recovered which was taken into possession.

3. On 29.9.2000 Bhanu Pratap Gangwar and Rajesh Kumar Gangwar were arrested. On the pointing out of Bhanu Pratap Gangwar a 315 bore pistol was recovered and a 12 bore pistol was recovered on the pointing out of Rajesh Kumar Gangwar. The pistols were sealed and recovery memo was prepared which is Ext. Ka-5. He also prepared the site plan of the place of recovery of the country made pistols, which is Ext. Ka-18. On the basis of recoveries of the country made pistols case under Section 25 Arms Act was registered. A letter was also recovered from the pocket of the deceased, which is Ext. Ka-3. On 14.10.2000, statements of Ram Krishna Agnihotri, Azam Khan and S.I. Narendra Singh Tewatiya were recorded. On 17.10.2000 statement of Atul Kumar Sexana under Section 164 Cr.P.C. was recorded by the Magistrate. On 23.10.2000 recovered Pistols were sent for scientific laboratory test. After conclusion of the investigation he submitted charge sheet against the accused persons.

4. The post mortem on the dead body of the deceased was conducted by Dr. R.S. Yadav on 26.9.2000 at 3 p.m. and noted following ante mortem injuries on the person of the deceased: 1. Gun shot wound 2 x 2 cm. below chin 2.0 cm. muscle deep. Margin irregular. Blackening present around the wound. On deeper dissection there is a hole in trachea and fractured 2 cervical vertebrae. There are 11 pellets present in the wound. 2. Multiple abrasion on right side of neck in area of 4 x 1 cm. 4.0 cm. above from right clavicle. 3. Gunshot wound 2 x 1.5 cm. x right side upper part of chest below clavicle 4.0 cm. away from tip of right shoulder joint. One bullet present in the wound. Blackening present around the wound. Muscle deep. Margin irregular. Four pellets present in the wounds. 4. Gunshot wounds 2 x 1.5 cm on right shoulder joint lateral part 4.0 cm. below from tip of right shoulder joint blackening present. Muscle deep. Margins irregular. Three pellets present in the wound. 5. Gunshot wound 4 x 6 cm. on right forearm. Margins irregular. Muscle deep. Tenders are seen. Two pellets present. Blackening present. 6. Gunshot wound 3 x 2 cm. on back of right shoulder joint muscle deep. Margin irregular. Blackening present. 7. Multiple gunshot wounds in area of 17 x 7 cm. around the , injury No. 6. Blackening present around the wounds. Biggest size of wound .5 x .5 cm. Smallest size of .2 x .2 cm. Four pellets present. 8. Multiple gunshot wounds in area of 20 x 8 cm. left lower arm elbow and left forearm. Blackening present. Size of biggest wound .5 x .5 cm. smallest of .2 x .2 cm. 9. Contusion 2 x 1 cm. on left side of chest. 17.0 cm. below from left clavicle. 10. Gun shot wound 4 x 2 cm. on back of lumber region mid part. Fractured lumber vertebrae. Dept in peritoneal cavity. Seven pellets present. One plastic tickle present. 11. Abrasion 4 x 2 cm. on right knee (Patella)

5. In the opinion of the doctor cause of death of deceased was due to shock and hemorrhage as a result of ante mortem injuries.

6. After the submission of charge sheet case was committed to the court of Session and the Sessions Judge had framed charges under Section 302/34 I.P.C. and 3/25/27 Arms Act against the accused persons which was denied by the accused and claimed trial.

7. In order to prove its case at the trial, the prosecution examined 16 witnesses in all and the case of the defence was of denial and false implication.

8. P.W. 1 Radhey Shyam, Assistant Station Master, Pilibhit deposed that on 25.9.2000 he was posted as Assistant Station Master. At about 13 O’clock in the night he received information from the control room Beesalpur Railway Station that Train No. 166 Down stopped at Beesalpur Station and some persons have shot one man who died. The train was stopped at Beesalpur station. He prepared the memo of information and sent to S.H.O., G.R.P., Pilibhit through one Munna which is Ext. Ka. 1

9. P.W. 2 Mohd. Yunus Siddiqui, Station Superintendent, Beesalpur deposed that on 25.9.2000 he was posted as Station Superintendent, Beesalpur He was present at the railway station at about 12.45 P.M. and at that time Train No. 166 Down reached at the station. He reached there alongwith one Murlidhar. He heard 4-6 shots and hue and cry was raised at the station. He received information that one person had been murdered and assailants have fled away. He informed the Kotwali Beesalpur and they instructed him to contact G.R.P., Pilibhit. He sent information to A.S.M. Pilibhit and control room Pilibhit who ordered him to remove the bogey and thereafter the train had left the station at 3.25 P.M. In the meantime the police of Kotwali, Beesalpur had arrived.

10. P.W. 3 Rajendra Kumar Jaiswal is a hawker of toffee and groundnut. He did not support the prosecution case. He was declared hostile. In the cross examination he stated that he was resident of Beesalpur. He did not know Bhanu Pratap and Rakesh Kumar. Daroga did not record his statement. He could not say as to how Daroga recorded his 161 Cr.P.C. statement.

11. P.W. 4 Bhoopram Assistant Station Master, Railway Station Beesalpur deposed that on 25.9.2000 he was posted on the same post and he was present on his duty. At about 12.45 P.M. 166 DN train arrived at Beesalpur station and some persons had committed murder of a boy and hue and cry was raised at the railway station. One boy was lying dead in the gallery of Coach No. 72294. He immediately informed the Assistant Station Master, Pilibhit.

12. P.W. 5 S.I., Narendra Singh Tevatiya deposed that on 25.9.2000 he was posted as Sub Inspector, Police Station Beesalpur. On that date Jai Prakash Agnihotri was murdered. After receiving the information about the murder he also reached at the railway station.

13. He enquired about the incident. Atul Saxena, aged about 12 years informed him that he lives in Mohalla Kayasthan, Qasba Pooranpur with his uncle Vidhya Shanker Saxena. At about 12.30 P.M. he was sitting on a bench at Railway Station Beesalpur for going to Pooranpur. One boy also reached and sat beside him. As the train stopped at the platform, Bhanu Pratap and Rajesh came and put his hand on the shoulder of the boy, who was sitting beside him and he started running away. Bhanu Pratap and Rajesh started chasing him, carrying country made pistols in their hands. That boy entered into a bogey. Rajesh and Bhanu Pratap entered into the bogey and fired upon the boy. Both the assailants were known to that boy and they went away towards Qasba Beesalpur.

14. P.W. 6 Smt. Nanhi Devi deposed that she knew Bhanu Pratap and Rajesh who were friends of his deceased son. About 1 year and ten months back, she alongwith her son Vinod and Raju had gone to Beesalpur for taking medicine. Raju @ Jai Prakash went to Pilibhit for appearing in the examination. He had to board a train. She and Vinod purchased the medicines and were returning to their home. While they were returning, Rajesh and Bhanu Pratap met them on a scooter and they extended threat to her son. At about 1.00 in the noon she received information that her son was murdered.

15. P.W. 7 Vinod Kumar deposed that he alongwith his brother Jai Prakash Agnihotri and mother came to Beesalpur for treatment of his son Deepak. From the gate of Beesalpur Hospital Raju went to railway station for going to Pilibhit. After purchasing medicines he alongwith his mother were returning to their house. At about 11.45 A.M. Bhanu Pratap and Rajesh met them. They were very angry. They told his mother that Raju used to write letters to their sister and he had illicit relations with her. They should stop him otherwise he would be killed. They returned to their Mohalla. At about 1.00 O’ Clock they received information that Raju was murdered. He also proved hand-writing of deceased which are Exts. Ka. 3 and Ka. 4.

16. P.W. 8 Basant Lal deposed that he was Chowkidar of a woodshed. About 2 years back at about 12.00 O’clock, two persons parked their scooter in front of his shop and went towards railway station. After sometime he heard shots from the side of railway station and those two boys reached and tried to start the scooter but it did not start. They fled away leaving their scooter in front of his shed. The police had taken away the scooter.

17. P.W. 9 Ved Prakash deposed that he was a tenant in the house of deceased Raju. Bhanu Pratap and Rajesh were friends of Raju. About 2 years back Raju was murdered. About one or two months prior to his murder, Raju was not liking them and they stopped coming to his home. Few days prior to the occurrence he saw Rajesh in the house of Raju on the roof of his house. Seeing Rajesh he realised that he was very angry and he also warned Raju that he should be careful from Rajesh and Bhanu Pratap.

18. P.W. 10 H.C. Digvijay Sharma deposed that on 29.9.2000 he was posted at Police Station G.R.P., Pilibhit and in his presence accused were arrested and on the pointing out of the accused Bhanu Pratap one country made pistol was recovered and another country made pistol was also recovered on the pointing out of Rajesh. Recovery memo of country made pistols is Ext. Ka. 5.

19. P.W. 11 Dr. R.S. Yadav conducted the autopsy on the dead body of the deceased.

20. P.W. 12 Awadhesh is the witness of recovery memo. He deposed that on 29.9.2000 in his presence country made pistols were recovered on the pointing out of the accused.

21. P.W. 13 is Atul Kumar Saxena. He did not support the prosecution case. He stated that his statement under Section 164 Cr.P.C. was recorded and he had given the statement under the fear of police. He was declared hostile. The Sessions Judge had directed identification of the accused but he failed to identify the accused.

22. P.W. 14 Ram Krishna deposed that on 25.9.2000 two boys had parked their scooter in front of woodshed. The police had taken the possession of the scooter. The name of Rajesh was written on the back of the scooter. Registration papers of the scooter were also recovered from the dickey of the scooter which were in the name of the father of the accused. He had signed the recovery memo which is Ext. Ka. 2.

23. P.W. 15 Sub Inspector Jai Prakash deposed that on 25.9.2000 at 1.10 P.M. he registered the report on the basis of written memo of S.M., Pilibhit. A case was registered at Case Crime No. 185/00 under Section 302 I.P.C. against unknown persons, He started the investigation. He recorded the statements of Assistant Station Master and Sri Munna. He reached at the railway station and recorded the statement of Bhoopram, Station Master, Beesalpur. On his direction H.C.P. Sachiddanand prepared the inquest memo, which is Ext. Ka. 9. Letter to R.I., letter to C.M.O. and photo lash, are Exts. Ka. 10 to 12. Challan lash and sample seal are Ext. Ka. 13 and 14. The dead body was sealed and handed over to Constables Om Prakash and Rajesh Pandey for carrying it to the mortuary for post-mortem examination. He collected the plain and blood smeared earth from the bogie and prepared its recovery memo which is Ext. Ka. 15. He also recovered 2 empty cartridges of 12 bore and prepared its recovery memo which is Ext. Ka. 16. Thereafter he recorded the statement of brother of the deceased Manoj Kumar. On 25.9.2000 he recorded the statements of Munna Lal, Sarvesh Mishra and Nand Kishore. Thereafter the statements of S.I. Narendra Singh Tiwatiya, Rajendra Kumar Jaiswal, Murlidhar, Mohd. Unis Siddiqui and Bhoopram, Station Master were recorded. He also recorded the statements of Nanhi Devi, mother and Vinod Kumar, brother of the deceased. Thereafter he recorded the statement of eye witness Atul Kumar Saxena. On 26.9.2000 he prepared the site plan on the pointing out of Atul Kumar Saxena which is Ext. Ka. 17. Thereafter the statements of Bhola, Ved Prakash Mishra and Chowkidar Basant Lal were recorded. He also prepared the recovery memo of driving license and registration paper recovered from the dickey of the scooter deposited by S.I. Narendra Singh Tewatiya which are Exts. Ka. 7 & Ka. 8. On 29.9.2000 accused Bhanu Pratap Gangwar and Rajesh Gangwar were arrested and on their pointing out country made pistols were recovered. A case under Section 25 Arms Act was also registered against the accused persons. The recovery memo of country made pistols is Ext. Ka. 5. He prepared the site plan of the place of recovery, which is Ext. Ka. 18. He also recorded the statement of Awadhesh Kumar, a witness of recovery of weapon of assault. Two love letters were also recovered from the pocket of the deceased, which are Ext. Ka. 3 and 4. On 17.10.2000 statement under Section 164 Cr.P.C. of Atul Kumar was recorded. On 23.10.2000 weapons of assault were sent for scientific examination. On 30.10.2000 he submitted the chargesheet against the accused.

24. P.W. 16 Jaswant Singh deposed that on 29.9.2000 he was posted as Sub Inspector, Police Station G.R.P., Pilibhit. Case Crime No. 186 of 2000 against Bhanu Pratap and case crime No. 187 of 2000 against Rajesh Kumar were registered under Section 25 Arms Act. He investigated the cases. He recorded statements of the witnesses and prepared the site plan, which are Ext. Ka. 22 and Ka 23. On 4.10.2000 he obtained sanction for the Prosecution from District Magistrate, Pilibhit which are Ext. Ka. 24 and Ka. 25. He submitted the chargesheet against the accused persons, which are Ext. ka. 26 and Ka. 27.

25. The Sessions Judge relying upon the prosecution case convicted and sentenced the appellants, as aforesaid.

26. We have heard Shri Dileep Kumar and Shri R.K. Vaish, learned Counsel for the appellants and Shri N.L. Srivastava, learned A.G.A. for the State.

27. The case in hand is of direct as well as circumstantial evidence. The findings of the trial court are based upon both kinds of evidences.

28. The first circumstance is of motive. The deceased was having an affair with the sister of the appellants, which was objected to by all of them. In support of this circumstance the prosecution has examined P.W. 6 Smt. Nanhi Devi who is mother of the deceased and P.W. 7 Vinod Kumar who is brother of the deceased. Both have deposed that on the date of occurrence, P.W. 6 Nanhi Devi and P.W. 7 Vinod Kumar had gone to Beesalpur to consult a doctor with regard to illness of grand daughter of P.W. 6, a two years old son of P.W. 7 Vinod Kumar. They stated that they had gone to Beesalpur alongwith the deceased Raju. Raju @ Jai Prakash, the deceased, left them at about 11 A.M. at the gate of the hospital for appearing in the examination paper in Pilibhit. He had to board a train at Beesalpur railway station. They had purchased medicines and were returning to their house. On their way Rajesh and Bhanu Pratap met them on a scooter and told them to warn her son as he had visited their house alongwith letter and in case he will not mend his ways he will have to face the consequences. The accused had threatened them at about 1 1.45 A.M. At about 1.00 O’ clock she heard the news about the murder of her son.

29. P.W. 7 corroborated the testimony of P.W. 6. He also identified the writing of Raju on Ext. Kha. 13/67 and Kha. 13/68 which arc Ext. Ka. 3 and Ka. 4. He also informed the investigating officer at the time of preparation of inquest report but he could not tell the reason as to why this fact has not been mentioned in his statement under Section 161 Cr.P.C. In support of the motive, P.W. 9 Ved Prakash @ Bhola was also examined. He stated that he was a tenant in the house of the deceased Raju. Bhanu Pratap and Rajesh were friend of Raju and they used to visit his house. About one or two months prior to the occurrence there was ill will between the accused and Raju and they stopped coming to his house. Few days prior to the occurrence he had seen Rajesh at the house of Raju. He had seen him and he had an impression that he was angry and he had also warned Raju to be careful from Rajesh and Bhanu Pratap. The evidence of P.Ws. 6,7 and 9 indicates that there was some ill will between the appellants and the accused in connection with some affair of the deceased with the sister of the appellants.

30. The defence has challenged the motive of the crime on the ground that the name of the sister of the appellants was Soni but the letter, which was alleged to have been recovered from the pocket of the deceased, the name of Kajal was mentioned in these letters and even the name of Raju @ Jai Prakash was mentioned as Sahil.

31. It appears that there was some enmity between the appellants and accused persons. The motive for committing the offence is difficult to prove by direct evidence. It is held to be a double edged weapon. There must be some reason for false implication also.

32. The other circumstance relied upon by the trial court is testimony of P.W. 8 Basant Lal who was Chowkidar of woodshed who deposed that on the date of occurrence two persons parked their scooter in front of the woodshed and after some time he heard shots from the side of railway station. These two persons who had parked their scooter came running and tried to start the scooter but they failed. Thereafter they left the scooter and ran away. He gave an information at the police station. He could not tell the number of the scooter nor he could identify the persons who had parked their scooter. P.W. 5 Sub Inspector N.S. Tewatiya and P.W. 14 Ram Krishna also deposed about the recovery of a scooter in front of the woodshed. This witness stated that the number of the recovered scooter was UP 26A-9589 which was in the name of Beni Ram, father of the appellants. From the scooter driving licence of Beni Ram was also recovered.

33. The two circumstances mentioned above in this case are that accused had threatened the deceased sometime prior to the occurrence and thereafter one scooter recovered in front of the woodshed which was parked by two boys prior to incident of firing and they again returned to take the scooter alongwith them but they failed to start the scooter and ultimately they left the scooter at that place and this scooter was registered in the name of the father of the appellants. It is important to mention that Chowkidar of woodshed did not identify the accused in court and the accused were not put up for identification during investigation. It cannot be said with certainty that these were the appellants who had parked the scooter. These two circumstances, in our opinion, do not prove that the appellants alone were the persons who had parked their scooter.

34. The last circumstance relied upon by the trial court is recovery of one 12 bore country made pistol on the pointing out of Rajesh and another country made pistol on the pointing out of Bhanu Pratap. In support of this recovery the prosecution has examined Jai Prakash, I.O., H.C. Digvijay Sharma and Awadhesh. They deposed that the accused Rajesh and Bhanu Pratap were arrested and on their pointing out from a pond opposite Beesalpur railway station two country made pistols were recovered. The Sessions Judge relied upon these evidence to connect the appellants with crime on the ground that in the post mortem examination report the injuries of 12 bore and 315 bore country made pistols were found on the person of the deceased. It is also important to mention that there is no such evidence on the record to connect these weapons with the crime. Two empty cartridges of 12 bore were alleged to have been recovered from the place of occurrence which were sent to ballistic expert for examination but ballistic expert report dated 26.11.2001 failed to connect recovered cartridges with the weapons recovered on the pointing out of the appellants and the Sessions had wrongly held that the weapons recovered on the pointing out of the appellant were connected with the crime.

35. The next most important evidence of the prosecution is the testimony of P.W. 13 A.K. Saxena. He did not support the prosecution case in court. He was declared hostile. The prosecution has filed his 164 Cr.P.C. statement in which he named the appellants as accused. The Sessions Judge also relied upon the statement of the accused recorded under Section 164 Cr.P.C. The trial court ignored the fundamental rule of criminal jurisprudence that a statement of witness recorded under Section 164 Cr.P.C. cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him. See George v. State of Kerala , Ram Kishan Singh v. Harnam Kaur State of Delhi v. Sri Ram Lohiya .

36. This case is based upon only upon circumstantial evidence and the prosecution has proved following circumstances against the appellants: (i) There was enmity between the deceased and the appellants in connection with some affair of the deceased with the sister of the appellants. (ii) Prior to the occurrence they had met with the brother and mother of the deceased while they were on a scooter and extended threats. (iii) Two boys had parked their scooter in front of a woodshed prior to incident of shooting at the railway station and thereafter they had tried to start the scooter but they could not do so and left the scooter in front of the woodshed and this scooter was registered in the name of father of the appellants. (iv) After their arrest two country made pistols one 12 bore and one 315 bore were recovered on the pointing out of the appellants.

37. In our opinion these circumstances do not connect the appellants with the crime. The prosecution failed to prove that the appellants were the persons who had parked their scooter and they were the boys who were trying to take away the scooter in front of the woodshed. P.W. 8 Basant Lal did not identify the appellants as the boys who had parked their scooter and in our opinion this evidence is not sufficient to connect the appellants that they were present at the woodshed.

38. It has been laid down by the Apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

39. In the case of Padala Veera Redely v. State of Andhra Pradesh 1991 SCC (Crl.) 407 the Apex Court laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: 1. The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; 2. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; 3. The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that with in all human probability the crime was committed by the accused and none else; and. 4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

40. The case in hand has to be gauzed in the background of aforesaid principles.

41. In the light of the above, we are of the opinion that the circumstances alleged against the appellants are not such which unerringly prove that the appellants alone had committed the murder of the deceased.

42. These circumstances raise only suspicion against the appellants but it is well settled that suspicion, howsoever strong it may be, cannot take the place of proof. In any view of the matter, on the basis of the circumstances, it is not possible to draw an irresistible conclusion, which is in compatible with innocence of the appellants so as to complete the chain. It is well settled that in a case of circumstantial evidence, the chain of circumstances must be complete and in case there is any missing link therein, the same cannot form the basis for conviction. A strong suspicion, no doubt, exists against the appellants but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case.

43. for the foregoing reasons we are of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellants.

44. In the result this appeal is allowed. The conviction and sentences of appellants Bhanu Pratap Gangwar and Rajesh Kumar Gangwar under Sections 302/34 I.P.C. and 25 Arms Act is hereby set aside. Both the appellants are acquitted of the charges they were convicted for. The appellants are in jail. They shall be released forthwith unless wanted in any other case.

45. Office is directed to communicate this order to the court concerned within 15 days from today for compliance of this order.

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No 498a based on hearsay evidence. Husband acquitted by Supreme court even after wife’s death

No 498a conviction based on hearsay evidence as the exceptions to Sec 32 Indian Evidence act are NOT acceptable for trying cases / crimes under ipc 498a. Also prosecution has failed to prove case beyond reasonable doubt. Hence Husband acquitted even after wife committed suicide.

///It follows, therefore, that there was no legal evidence tendered in the case which could be made the basis for returning a finding with respect to the alleged cruelty of the accused with the deceased. In the absence of any legal evidence produced in the case, we are of the opinion that the prosecution has failed to prove, beyond doubt, that the appellant had committed the offence under Section 498A of the Indian Penal Code and find that it is a fit case where he is entitled to be given the benefit of doubt.

In view of our finding that there is no legal evidence to connect the accused with the commission of the offence under Section 498A of the Indian Penal Code, this appeal is allowed by setting aside the impugned judgment of the High Court as also of trial court. Giving him the benefit of doubt, the appellant is acquitted of the charge under Section 498A of the Indian Penal Code. His bail bond stands discharged.
/////

Supreme Court of India

Gananath Pattnaik vs State Of Orissa on 6 February, 2002

Author: Sethi

Bench: R.P. Sethi, Bisheshwar Prasad Singh

CASE NO.: Appeal (crl.) 1 of 1995


PETITIONER: GANANATH PATTNAIK

Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT: 06/02/2002

BENCH: R.P. Sethi & Bisheshwar Prasad Singh


JUDGMENT:

SETHI,J.

The appellant was charged for the commission of offences punishable under Sections 304B and 498A of the Indian Penal Code for allegedly subjecting his wife to cruelty and causing the dowry death. After trial, the appellant was acquitted of the charge framed against him under Section 304B but convicted under Section 498A of the Indian Penal Code and sentenced to three years rigorous imprisonment. The appeal filed by the appellant against his conviction and sentence under Section 498A IPC was dismissed vide the judgment impugned in this appeal.

The facts of the case are that the appellant’s marriage with Rashmirekha was solemnised on 4.3.1984. A male child was born to the parties on 9.5.1985. Rashmirekha, the wife of the appellant died by hanging herself in the bathroom regarding which the appellant is stated to have lodged a written report to the Police Station Sahid Nagar and he informed the family members of the deceased. PW1, the father of the deceased thereafter lodged an FIR alleging therein that his daughter was murdered by the appellant and his family members. During the investigation it transpired that the deceased had committed suicide on account of dowry demands, allegedly made by the appellant and his family members. It was further revealed that the deceased had been subjected to ill-treatment, harassment and cruelty. The appellant was alleged to be having illicit connection with his brother’s wife. The accused totally denied the occurrence. In his statement, recorded under Section 313 of the Code of Criminal Procedure, he admitted that the deceased was his wife but asserted that he was having very cordial relations with her. There was no demand of dowry either by him or his brother or his family members. According to him the deceased had committed suicide which is not related to either cruelty or harassment or demand of dowry.

Upon analysis of the prosecution evidence, the trial court concluded that, “in absence of any acceptable evidence to establish the foundational fact, the accused cannot be held guilty for the offence under Section 304B of IPC”. The trial court, however, found the appellant guilty for the offence under Section 498A IPC by finding: “In this case there is evidence that the accused has given purshes to the deceased in presence of PW4. He has taken away the child from her as stated by PW5. There is also evidence that the deceased was not allowed to sit on the scooter by the accused and he was frequently staying absent in the house. He also failed to explain his position in relation to his sister-in-law Bijayalaxmi to the deceased for which there was an impression that he had illicit relationship with Bijayalaxmi. I find the evidence of the witnesses on this score is consistent. Taking away the child and the further ill treatment of the accused to the deceased as indicated above amounts to cruelty in as much as by the said conduct of the accused, it could be much possible that the deceased Rasmirekha could be driven to commit suicide.”

The aforesaid findings were confirmed by the High Court vide the order impugned.

It is conceded before us that no appeal or revision has been filed against the judgment of the trial court by which the appellant was acquitted of the charge framed against him under Section 304B of the Indian Penal Code.

We do not agree with the argument of the learned counsel for the appellant that even on proof of the aforesaid circumstances, as noticed by the trial court, no case was made out against the appellant as, according to him, those facts even proved do not constitute cruelty for the purposes of attracting the provisions of Section 498A of the Indian Penal Code. Cruelty for the purposes of aforesaid section has been defined under the Explanation of the Section to mean:

“(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or


(b) harassment of the woman where such harassment is with a view to coercing here or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

The concept of cruelty and its effect varies from individual to individual also depending upon the social and economic status to which such person belongs. “Cruelty” for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case.

Learned counsel for the appellant then submitted that the findings returned by the trial court regarding the cruelty within the meaning of Section 498A of the Indian Penal Code are not based on any legal evidence.

To hold that the accused had once given pushes to the deceased which drove her to commit suicide are based upon the alleged testimony of PW4 who is the mother of the deceased. We have minutely read the statement of the aforesaid witness and do not find any mention of her having seen the accused pushing the deceased which, in turn, could be held to be “cruelty” driving her to commit suicide.

Another circumstance of cruelty is with respect to taking away of the child from the deceased. To arrive at such a conclusion, the trial court has referred to the statement of PW5, who is the sister of the deceased. In her deposition recorded in the court on 4.5.1990 PW5 had stated:

“Whenever I had gone to my sister, all the times she was complaining that she is not well treated by her husband and in-laws for non-fulfilment of balance dowry amount of scooter and twin one.”

and added:

“On 3.6.1987 for the last time I had been to the house of the deceased i.e. to her separate residence. Sworna, Snigdha, Sima apa, Baby Apa accompanied me to her house on that day. At that time the deceased complained before us as usual and added to that she said that she is being assaulted by the accused now-a-days. She further complained before us that the accused is taking away the child from and her, and that her mother in-law has come and some conspiracy is going against her (the deceased). She further told that “MATE AU BANCHEI DEBENAHIN”.

Such a statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under Section 304B and such statement was admissible under Clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under Section 498A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an exception to the Hearsay Rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the Hearsay Rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused.

Another finding for recording the guilt of the accused is that once the deceased was not allowed to sit on the scooter by the accused and that he was frequently staying absent from his house. Learned counsel, appearing for the respondent, fairly conceded that no witness has stated to that effect and we feel that such a finding is not based upon any legal evidence.

The alleged relationship of the appellant with his sister-in-law is stated to be another circumstance which led the deceased to commit the suicide. Again there is no evidence on the record to hold that the deceased had conceived the apprehension of the appellant having illicit relations with his sister-in-law which led her to end the life. Learned counsel for the appellant has taken us through letters Exhibit A to F, stated to have been written by the deceased as admitted by PW4. In one of the letters the deceased is shown to have written to her mother stating:

Please informed me when the result of Tutu shall be declared and also send the new address of Bada Bhai in the letter have told you have occasion not to spread bad rumour against the sister-in-law (wife of Kailash Patnaik) and not to discuss about her with anybody; can these discussions will at all lead to a better understanding, rather it will create more misunderstanding and aggravating the situation and which is already in vogue. I came to know that you are telling to others that she is not providing me proper food, allowing me to wear good cloth and giving ill-treatment. I want to know who has given you these false information about her and as I remember, have never discuss about this to you; it is wrong to presume that she is misbehaving me; but you have been getting wrong information about her from others. When it comes her knowledge that that you have made discussion against her it creates rift and misunderstanding in our family; further I would like to bring your notice this is to report to her by those you discuss about her. Further why are you discussing with others regarding my stay; whether it is at village-home or at Bhubaneshwar. I have made number of fervent appeals to you not to make any bad discussion against her but you are not heeding to my advise and continuing same against her. By doing this, you are isolating me from rest of the family members.”

(EMPHASIS SUPPLIED) In view of the aforesaid letter it could not be held that the deceased had conceived an apprehension about the relationship of the appellant with his sister-in-law.

It follows, therefore, that there was no legal evidence tendered in the case which could be made the basis for returning a finding with respect to the alleged cruelty of the accused with the deceased. In the absence of any legal evidence produced in the case, we are of the opinion that the prosecution has failed to prove, beyond doubt, that the appellant had committed the offence under Section 498A of the Indian Penal Code and find that it is a fit case where he is entitled to be given the benefit of doubt.

In view of our finding that there is no legal evidence to connect the accused with the commission of the offence under Section 498A of the Indian Penal Code, this appeal is allowed by setting aside the impugned judgment of the High Court as also of trial court. Giving him the benefit of doubt, the appellant is acquitted of the charge under Section 498A of the Indian Penal Code. His bail bond stands discharged.

……………………….J. (R.P. Sethi)

……………………….J. (Bisheshwar Prasad Singh)

February 6, 2002

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist