Om Namo Bhagwate Vasudevay - Pandit Jasraj 1/3

Curative Petition: Its significance and interpretation by the Supreme Court of India

There has been considerable debate and focus in recent days on the 'curative petition' filed by the Central Bureau of Investigation [CBI] in the Supreme Court of India in terms of the Bhopal tragedy. What is a 'curative petition' and what is the origin and significance of this very important legal expression under Indian constitutional law? The answers to these very pertinent questions are found in the celebrated judgement given by the Supreme Court of India in the case entitled, "Rupa Ashok Hurra vs. Ashok Hurra and another" reported in [(2002) 4 SCC 388]. The text of this erudite and eloquent judgment is quoted hereafter. This makes very illuminating reading.


SUPREME COURT OF INDIA

Hon’ble the Chief Justice, Hon’ble Mr. Justice Syed Shah Mohammed Quadri, Hon’ble Mr. Justice Umesh C. Banerjee, Hon’ble Mr. Justice S.N. Variava and Hon’ble Mr. Justice Shivaraj V. Patil

Rupa Ashok Hurra Petitioner and M/s. Birla Textiles and another Petitioners
versus
Ashok Hurra and another Respondents and Union of India and others Respondents
Case No: Writ Petition (C) No. 509 of 1997 (With W.P.(C) No. 245/99, 338, 325-326, 663, 680/2000, 374/2001 and 108 of 1999)

Date of Decision: April 10, 2002

JUDGMENT
Syed Shah Mohammed Quadri, J.:— These writ petitions have come up before us as a Bench of three learned Judges of this Court referred the first mentioned writ petition to a Constitution Bench observing thus:
"Whether the judgment of this Court dated March 10, 1997 in Civil Appeal No. 1843 of 1997 can be regarded as a nullity and whether a writ petition under Article 32 of the Constitution can be maintained to question the validity of a judgment of this Court after the petition for review of the said judgment has been dismissed are, in our opinion, questions which need to be considered by a Constitution Bench of this Court".
The other writ petitions were tagged to that case.

2. In these cases the following question of constitutional law of considerable significance arises for consideration: whether an aggrieved person is entitled to any relief against a final judgment/order of this Court, after dismissal of review petition, either under Article 32 of the Constitution or otherwise.

3. In our endeavour to answer the question, we may begin with noticing that the Supreme Court of India is established by Article 124 of the Constitution which specifies its jurisdiction and powers and enables Parliament to confer further jurisdiction and powers on its. The Constitution conferred on the Supreme Court original jurisdiction (Articles 32 and 131); appellate jurisdiction both civil and criminal (Articles 132 133, 134); discretionary jurisdiction to grant special leave to appeal (Article 136) and very wide discretionary powers, in the exercise of its jurisdiction, to pass decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, which shall be enforceable throughout the territory of India in the manner prescribed (Article 142); powers like the power to withdraw any case pending in any High Court or High Courts to itself or to transfer any case from one High Court to another High Court (Article 139) and to review judgment pronounced or order made by it (Article 137). Conferment of further jurisdiction and powers is left to be provided by Parliament by law (Article 138). Parliament is also enabled to confer further powers on the Supreme Court (Articles 134(2), 139, 140). Article 141 says that the law declared by the Supreme Court shall be binding on all courts within the territory of India and Article 144 directs that all authorities civil and judicial, in the territory of India, shall act in aid of the Supreme Court. It is a Court of record and has all the powers of such a Court including power to punish for contempt of itself (Article 129).

4. Since the jurisdiction of this Court under Article 32 of the Constitution is invoked in these writ petitions, we shall advert to the provisions of Article 32 of the Constitution. It is included in Part III of the Constitution and is quoted hereunder:
"32. Remedies for enforcement of rights conferred by this Part -
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution."

5. A perusal of the Article, quoted above, shows it contains four clauses. Clause (1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III- fundamental rights. By clause (2) the Supreme Court is vested with the power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate for the enforcement of any of the rights conferred by Part III. Without prejudice to the powers of the Supreme Court in the aforementioned clauses (1) and (2), the Parliament is enabled, by clause (3), to empower by law any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). The constitutional mandate embodied in clause (4) is that Article 32 shall not be suspended except as otherwise provided for by the Constitution.

6. Inasmuch as the Supreme Court enforces the fundamental rights by issuing appropriate directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, it may be useful to refer to, in brief the characteristics of the writs in general and writ of certiorari in particular with which we are concerned here. In English law there are two types of writs - (i) judicial procedural writs like writ of summons, writ of motion etc. which are issued as a matter of course; these writs are not in vogue in India and (ii) substantive writs often spoken of a high prerogative writs like writ of quo warranto, habeas corpus, mandamus, certiorari and prohibition etc., they are frequently resorted to in Indian High Courts and the Supreme Court. "Historically, prohibition was a writ whereby the royal courts of common law prohibited other courts from entertaining matters falling within the exclusive jurisdiction of the common law courts; certiorari was issued to bring the record of an inferior court into the King’s Bench for review or to remove indictments for trial in that court; mandamus was directed to inferior courts and tribunals and to public officers and bodies, to order the performance of a public duty. All three were called prerogative writs" [Halsbury’s Laws of England, Fourth Edition (reissue), Vol.I (1) Para 103]. In England while issuing these writs, at least in theory, the assumption was that the King was present in the King’s Court. The position regarding the House of Lords of described thus, "of the Court of Parliament, or of the King of Parliament as it is sometimes expressed the only other supreme tribunal in this country". In Rajunder Narain Raj. vs. Bijai Govind Singh (1836 (1) Moo. P.C. 117). They are discretionary writs but the principles for issuing such writs are well defined. In the pre-constitutional era the jurisdiction to issue the prerogative writs was enjoyed only by the three chartered High Courts [High Courts of Bombay, Calcutta and Madras] in India but with the coming into force of the Constitution, all the High Courts and the Supreme Court are conferred powers to issue those writs under Article 226 and Article 32, respectively, of the Constitution. In regard to the writ jurisdiction, the High Courts in India are placed virtually in the same position as the Courts of King’s Bench in England. It is a well-settled principle that the technicalities associated with the prerogative writs in English Law have no role to play under our constitutional scheme. It is, however, important to note that a writ of certiorari to call for records and examine the same for passing appropriate orders, is issued by a superior court to an inferior court which certifies its records for examination. "Certiorari lies to bring decisions of an inferior court, tribunal, public authority or any other body of persons before the High Court for review so that the court may determine whether they should be quashed, or to quash such decisions. The order of prohibition is an order issuing out of the High Court and directed to an inferior court or tribunal or public authority which forbids that court or tribunal or authority to act in excess of its jurisdiction or contrary to law. Both certiorari and prohibition are employed for the control of inferior courts, tribunals and public authorities." [Halsbury’s Laws of England, Fourth Edition (reissue) Vol.I(1) Para 109].

7. Having carefully examined the historical background and the very nature of writ jurisdiction, which is a supervisory jurisdiction over inferior Courts/ Tribunals, in our view, on principle a writ of certiorari cannot be issued to co-ordinate courts and a fortiorari to to superior courts. Thus, it follows that a High Court cannot issue a writ to another High Court, nor can one Bench of a High Court issue a writ to different Bench of the same High Court much less can writ petition of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. Though, the judgments/orders of High Courts are liable to be corrected by the Supreme Court in its appellate jurisdiction under Articles 132, 133 and 134 as well as under Article 136 of the Constitution, the High Courts are not constituted as inferior courts in our constitutional scheme. Therefore, the Supreme Court would not issue a writ under Article 32 to a High Court. Further, neither a smaller Bench nor a larger Bench of the Supreme Court can issue a writ under Article 32 of the Constitution to any other Bench of the Supreme Court. It is pointed out above that Article 32 can be invoked only for the purpose of enforcing the fundamental rights conferred in Part III and it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III. It may further be noted that the superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution.

8. In Naresh Shridhar Mirajkar & Ors. vs. State of Maharashtra and another [1966(3) SCR 744], some journalists filed a Writ Petition in the Supreme Court under Article 32 of the Constitution challenging an order passed by the High Court of Bombay, on the Original Side, prohibiting publication of the statement of a witness given in open court, as being violative of Article 19(1)(a) of the Constitution of India. A Bench of nine learned Judges of this Court considered the question whether the impugned order violated fundamental rights of the petitioners under Article 19(1)(a) and if so whether a writ under Article 32 of the Constitution would issue to the High Court. The Bench was unanimous on the point that an order passed by this Court was not amenable to the writ jurisdiction of this Court under Article 32 of the Constitution. Eight of the learned Judges took the view that a judicial order cannot be said to contravene fundamental rights of the petitioners. Sarkar, J. was of the view that the Constitution does not contemplate the High Courts to be inferior courts so their decisions would not be liable to be quashed by a writ of certiorari issued by the Supreme Court and held that this Court had no power to issue a writ of certiorari to the High Court. To the same effect are the views expressed by Shah and Bachawat, JJ. Though, in his dissenting judgment Hidayatullah, J., (as he then was) held that a judicial order of the High Court, if erroneous, could be corrected in an appeal under Article 136 of the Constitution, he, nonetheless, opined that the impugned order of the High Court committed breach of the fundamental right of freedom of speech and expression of the petitioners and could be quashed under Article 32 of the Constitution by issuing a writ of certiorari to the High Court as subordination of the High Court under the scheme of the Constitution was not only evident but also logical. In regard to the apprehended consequences of his proposition, the learned Judge observed:
"It was suggested that the High Courts might issue writs to this Court and to other High Courts and one Judge or Bench in the High Court and the Supreme Court might issue a writ to another Judge or Bench of in the same Court. This is an erroneous assumption. To begin with the High Courts cannot issue a writ to the Supreme Court because the writ goes down and not up. Similarly, a High Court cannot issue a writ to another High Court. The writ does not go to a court placed on an equal footing in the matter of jurisdiction. Where the county court exercised the powers of the High Court, the writ was held to be wrongly issued to it (See: In re The New Par Consols, Limited [1898 (1) Q.B. 669]". (Emphasis supplied).

9. In A.R. Antulay vs. R.S. Nayak & Anr. [1988(2) SCC 602], the question debated before a seven-Judge Bench of this Court was whether the order dated February 16, 1984, passed by a Constitution Bench of this Court, withdrawing the cases pending against the appellant in the Court of Special Judge and transferring them to the High Court of Bombay with a request to the Chief Justice to assign them to a sitting Judge of the High Court for holding trial from day to day. [R.S. Nayak vs. A.R. Antulay (1984) 2 SCC 183 at 243), was a valid order. It is relevant to notice that in that case the said order was not brought under challenge in a petition under Article 32 of the Constitution. Indeed, the appellant’s attempt to challenge the aforementioned order of the Constitution Bench before this Court under Article 32 of the Constitution, turned out to be abortive on the view of that the writ petition under Article 32, challenging the validity of the order and judgment passed by the Supreme Court as nullity or otherwise incorrect, could not be entertained and that he might approach the court with appropriate review petition or any other application which he might be entitled to file in law. While so, in the course of the trial of those cases the appellant raised an objection in regard to the jurisdiction of the learned Judge of the High Court to try the cases against him. The learned Judge rejected the objection and framed charges against the appellant, which were challenged by him by filing a Special Leave Petition to appeal before this Court wherein the question of jurisdiction of the High Court to try the cases was also raised. It was numbered as Criminal Appeal No. 468 of 1986 and was ultimately referred to a seven-Judge Bench. By majority of 5:2 the appeal was allowed and all proceedings in the cases against the appellant before the High Court pursuant to the said order of the Constitution Bench dated February 16, 1984, were set aside and quashed. Mukharji, Oza and Nataranjan, JJ. took the view that the earlier order of this Court dated February 16, 1984 which deprived the appellant of his constitutional rights, was contrary to the provisions of the Act of 1952 and was in violation of the principles of natural justice and in the background of the said Act was without any precedent and that the legal wrong should be corrected ex debito justitiae Ranganath Mishra, J., with whom Ray, J., agreed, while concurring with the majority, observed that it was a duty of the Court to rectify the mistake by exercising inherent powers. Ranganathan, J., expressed his agreement with the view of the majority that the order was bad being in violation of Articles 14 and 21 of the Constitution. However, he held that the said order was not one such order as to be recalled because it could not be said to be based on a view which was manifestly incorrect, palpably absurd or patently without jurisdiction. In that he agreed with Venkatachaliah, J., (as he then was) who gave a dissenting opinion. The learned Judge held that it would be wholly erroneous to characterise the directions issued by a five-Judge Bench as a nullity liable to be ignored and so declared in a collateral attack. However, five learned Judges were unanimous that the Court should act ex debito justitiae. On the question of power of the Supreme Court to review its earlier order under its inherent powers Mukharji, Oza and Nataranjan, JJ. expressed the view that the Court could do so even in a petition under Articles 136 or Article 32 of the Constitution. Ranganath Misra, J., gave a dissenting opinion holding that the appeal could not be treated as a review petition. Venkatachaliah, J., (as he then was) also gave a dissenting opinion that inherent powers of the Court do not confer or constitute a source of jurisdiction and they are to be exercised in aid of a jurisdiction that is already invested for correcting the decision under Article 137 read with Order XL Rule 1 of the Supreme Court Rules and for that purpose the case must go before the same Judges as far as practicable.

10. On the question whether a writ of certiorari under Article 32 of the Constitution could be issued to correct an earlier order of this Court Mukharji and Nataranjan, JJ., concluded that the powers of review could be exercised under either Article 136 or Article 32 if there had been deprivation of fundamental rights. Ranganath Misra, J., (as he then was) opined that no writ of certiorari was permissible as the Benches of the Supreme Court are not subordinate to the larger Benches of this Court. To the same effect is the view expressed by Oza, Ray, Venkatachaliah and Ranganathan, JJ., Thus, in that case by majority of 5:2 it was held that an order of the Supreme Court was not amenable to correction by issuance of a writ of certiorari under Article32 of the Constitution.

11. In Smt. Triveniben vs. State of Gujarat, [1989 (1) SCC 678], speaking for himself and other three learned Judges of the Constitution Bench, Oza, J., reiterating the same principle, observed:
"It is well settled now that a judgment of court can never be challenged under Article 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar vs. State of Maharashtra and also in A.R. Antulay vs. R.S. Nayak, the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper".
Jagannatha Shetty, J. expressed no opinion on this aspect.

12. We consider it inappropriate to burden this judgment with discussion of the decisions in other cases taking the same view. Suffice it to mention that various Benches of this Court reiterated the same principle in the following cases: [A.R. Antulay vs. R.S. Nayak & Anr. [1988 (2) SCC 602], Krishna Swami vs. Union of India & Ors. [1992 (4) SCC 605], Mohd. Aslam vs. Union of India. [1996(2) SCC 749], Khoday Distilleries Ltd. & Anr. vs. Register General, Supreme Court of India [1996(3) SCC 114], Gurbachan Singh & Anr. vs. Union of India & Anr. [1996(3) SCC 117], Babu Singh Bains & Ors. vs. Union of India & Ors. [1996(6) SCC 565] and P. Ashokan vs. Union of India & Anr. [1998(3) SCC 56].

13. It is, however, true that in Supreme Court Bar Association vs. Union of India & Anr. [1998(4) SCC 409], a Constitution Bench and in M.S. Ahlwat vs. State of Haryana & Anr. [2000(1) SCC 278] a three-Judge Bench, and in other cases different Benches quashed the earlier judgments /orders of this Court in an application filed under Article 32 of the Constitution. But in those cases no one joined issue with regard to the maintainability of the writ petition under Article 32 of the Constitution. Therefore, those cases cannot be read as authority for the proposition that a writ of certiorari under Article 32 would lie to challenge an earlier final judgment of this Court.

14. On the analysis of the ratio laid down in the aforementioned cases, we reaffirm our considered view that a final judgment /order passed by this Court cannot be assailed in an application under Article 32 of the Constitution of India by an aggrieved person whether he was a partly to the case or not.

15. In fairness to the learned counsel for the parties, we record that all of them at the close of the hearing of these cases conceded that the jurisdiction of this Court under Article 32 of the Constitution cannot be invoked to challenge the validity of a final judgment/order passed by this Court after exhausting the remedy of review under Article 137 of the Constitution read with Order XI. Rule 1 of the Supreme Court Rules 1966.

16. However, all the learned counsel for the parties as also the learned Attorney-General who appeared as amicus curiae, on the notice of this Court, adopted an unusual unanimous approach to plead that even after exhausting the remedy of review under Article 137 of the Constitution, an aggrieved person might be provided with an opportunity under inherent powers of this Court to seek relief in cases of gross abuse of the process of the Court or gross miscarriage of justice because against the order of this Court the affected party cannot have recourse to any other forum.

17. Mr. Shanti Bhushan, the learned senior counsel appearing for the petitioner, submitted that the principle of finality of the order of this Court had to be given a go-by and the case re-examined where the orders were passed without jurisdiction or in violation of the principles of natural justice, violation of any fundamental rights or where there has been gross injustice. He invited our attention to Order XL VII, Rule 6 of the Supreme Court Rules, 1966 and submitted that this Court had inherent jurisdiction and that cases falling in the aforementioned categories should be examined under the inherent jurisdiction of this Court. According to the learned counsel Article 129, would not be available to correct a judgment of this Court but he pleaded that as from the order of the Apex Court no appeal would lie, therefore, an application, by whatever name called, which should be certified by a senior counsel in regard to existence of permissible ground, has to be entertained on any of the aforementioned grounds to correct a judgment of this Court. He cited Antulay’s case, Supreme Court Bar Association’s case and Ahlwat’s case as instances in which this Court had corrected its earlier judgments. He advocated: (i) for oral hearing on such an application and (ii) for hearing by a Bench of Judges other than those who passed the order on the ground that it would inspire confidence in the litigant public.

18. Mr. K.K. Venugopal, the learned senior counsel, while adopting the arguments of Mr. Shanti Bhushan submitted that the provisions of Order XL VII, Rule 6 of the Supreme Court Rules, is a mere restatement of the provisions of Article 137 of the Constitution and that the inherent jurisdiction of this Court might be exercised to remedy the injustice suffered by a person. He suggested that a Constitution Bench consisting of senior judges and the Judges who passed the order under challenge, could be formed to consider the application seeking correction of final orders of this Court. He added that to ensure that floodgates are not opened by such a remedy, an application for invoking the inherent power of this Court might require that it should be certified by a senior advocate and in case of frivolous application the petitioner could be subjected to costs. He relied on the judgment of United States in United States of America vs. Ohio Power Company [1 Lawyers’ Ed. 2d 683] to show that in every jurisdiction the courts have correct their own mistakes. He cited the judgment of this Court in Harbans Singh vs. State of Uttar Pradesh & Ors. (1982(2) SCC 101) to show that even after the dismissal of the Review Petition the Supreme Court reconsidered its own judgment; he pleaded for laying down guidelines in regard to entertaining such an application.

19. Mr. Anil B. Divan, the learned senior counsel, submitted that Article 129 of the Constitution declared this Court to be a court of record so it would have inherent powers to pass appropriate orders to unto injustice to any party resulting from judgments of this Court. He relied on the judgment of this Court in Supreme Court Bar Association’s case (supra) to show that such a power was exercised by this Court and pleaded to fashion appropriate procedure for entertaining application to reconsider earlier judgment of this Court at the instance of an aggrieved person to do justice to the parties.

20. The learned Attorney-General argued that the remedy provided under Article 32 of the Constitution would not be available to a person aggrieved by the final order of this Court; he nonetheless supported the contentions urged by other learned counsel that in case of gross miscarriage of justice, this Court ought to exercise its inherent powers by entertaining an application to examine the final order of this Court, even when a review was rejected, in the rarest of the rare cases. According to him where the order was passed without jurisdiction or in violation of the principles of natural justice, the case would fall in the rarest of the rare cases. He, however, contended that an order of this Court could not be said to violate fundamental rights conferred under Part III of the Constitution and, therefore, on that ground no relief could be claimed. He submitted that under Article 137 read with Order XL Rule 1 of the Supreme Court Rules, 1966 review of an order of this Court is provided which will be considered by the same Bench unless the same Judges are not available by reason of demitting the office. In regard to reconsideration of the judgment under the inherent power of the Court he referred to the judgment of the Federal Court in Raja Prithwi Chand Lal Choudhary etc. vs. Raj Bahadur Sukharaj Rai & Ors. etc. [1940 (2) FCR 78]. He submitted that for correction of a final judgment of this Court on the ground of lack of jurisdiction or violation of principle of natural justice, a curative petition could be entertained which might be heard by an appropriate Bench composed of the senior Judges as well as Judges who passed the order.

21. Dr. Rajiv Dhavan, the learned senior counsel, argued that since the Supreme Court is the creature of the Constitution so the corrective power has to be derived from the provisions conferring jurisdiction on the Supreme Court like Articles 32 and 129-140; such a power does not arise from an abstract inherent jurisdiction. The corrective power must be exercised so as to correct an injustice in a case of patent lack of jurisdiction in a narrow sense, not in the Anisminic’s broader sense, and gross violation of natural justice. Relying on the judgment of House of Lords in R. v Bow Street Metropolitan Stipendiary Magistrate and others, exparte Pinochet Ugarte (No.2)’s case (1999(1) All ER 577) he has submitted that this Court has inherent power to correct its own judgment where a party through no fault of his own has been subjected to an unfair procedure giving scope for bias. His further contention is that the corrective power is a species of the review power and Articles 129, 137, Order XL Rule 5 and Order XL VII Rules 1 and 6 indicate that this Court has inherent power to set right its own judgment. He referred to the decisions of this Court in Antulay’s case, Supreme Court Bar Association’s case, Ahlwat’s case and Triveniben’s case (supra) to impress upon us that this Court has earlier exercised this power. He submitted that the Supreme Court can also issue practice direction in that behalf.

22. Mr. Ranjit Kumar, the learned senior counsel, invited our attention to various provisions of the Constitution dealing with different types of jurisdictions of this Court and advocated that in case of manifest illegality and palpable injustice this Court under its inherent powers could reconsider final judgment/order passed by this Court. He submitted that the composition of the Bench might include senior-most Judges along with the Judges who passed the order, if available. It is also his submission that while considering such curative petitions on the ground of manifest illegality and palpable injustice, in the rarest of rare cases factors like the doctrine of stare decisis and the finality and the certainty of the law declared by this Court are required to be kept in mind. He referred to the judgment of this Court rendered by seven learned Judges in The Keshav Mills Co. Ltd. vs. Commissioner of Income-Tax Bombay North [1965(2) SCR 908], which was followed by another Bench of seven learned Judges reported in Maganlal Chhaganlal (P) Ltd. vs. Municipal Corporation of Greater Bombay & Ors. [1974(2) SCC 402] and by a Bench of five learned Judges in the case of The Indian Aluminium Co. Ltd. vs. The Commissioner of Income-tax West Bengal, Calcutta [1972(2) SCC 150]. He stressed that the power of re-consideration of an earlier decision had to be very restricted; when the power of review is very limited and circumscribed as is evident from the decision of the Constitution Bench in Cauvery Water Disputes Tribunal [1993 Suppl. (1) SCC 96] and the Bench of three learned Judges in S. Nagaraj & Ors. vs. State of Karnataka & Anr. [1993 Suppl. (4) SCC 595] and in Ramdeo Chauhan vs. State of Assam [2001 (5) SCC 714] by three learned Judges, and in the case of Lily Thomas & Ors. vs. Union of India & Ors. [2000 (6) SCC 224] the exercise of inherent power for correcting the manifest illegality and palpable injustice after dismissal of the review petition has to be much narrower than the power of review.

23. These contentions pose the question, whether an order passed by this Court can be corrected under its inherent powers after dismissal of the review petition on the ground that it was passed either without jurisdiction or in violation of the principles of natural justice or due to unfair procedure giving scope for bias which resulted in abuse of the process of the Court or miscarriage of justice to an aggrieved person.

24. There is no gainsaying that the Supreme Court is the Court of last resort - the final Court on questions both of fact and of law including constitutional law. The law declared by this Court is the law of the land; it is precedent for itself and for all the courts/ tribunals and authorities in India. In a judgment there will be declaration of law and its application to the facts of the case to render a decision on the dispute between the parties to the lis. It is necessary to bear in mind that the principles in regard to the highest Court departing from its binding precedent are different from the grounds on which a final judgment between the parties, can be considered. Here, we are mainly concerned with the latter. However, when reconsideration of a judgment of this Court is sought the finality attached both to the law declared as well as to the decision made in the case, is normally brought under challenge. It is, therefore, relevant to note that so much was the value attached to the precedent of the highest court that in The London Street Tramways Company Limited vs. The London Country Council [LR 1898 Appeal Cases. 375], the House of Lords laid down that its decision upon a question of law was conclusive and would bind the House in subsequent cases and that an erroneous decision could be set right only by an Act of Parliament.

25. In Hoystead & Ors. vs. Commissioner of Taxation [LR 1926 AC 155 at 165], Lord Shaw observed:
"Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result.. If this were permitted litigation would have no end, except when legal ingenuity is exhausted".

26. To the same effect is the view expressed by the Federal Court of India in Raja Prithvi Chand Lal Choudhary’s case (supra) placing reliance on dicta of the Privy Council in Venkata Narasimha Appa Row vs. Court of Wards [1886 (II) Appeal Cases 660 at 664]. Gwyer, CJ, speaking for the Federal Court observed:
"This Court will not sit as a court of appeal from its own decisions, nor will it entertain applications to review on the ground only that one of the parties in the case conceives himself to be aggrieved by the decision. It would in our opinion be intolerable and most prejudicial to the public interest if cases once decided by the Court could be re-opened and re-heard: "There is a salutary maxim which ought to be observed by all Courts of last resort - Interest reipublicae ut sit finis litium. [It concerns the state that there be an end of lawsuits. It is in the interest of the State that there should be an end of law-suit] Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this".

27. In S. Nagaraj’s case (supra), an application was filed by the State of clarification of the order passed earlier. It was urged by the petitioner that any modification or recalling of the order passed by this Court would result in destroying the principle of finality enshrined in Article 141 of the Constitution. Sahai, J. speaking for himself and for Pandian, J. observed:
"Justice is a virtue which transcends all barriers, Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice".
The learned Judge referring to the judgment of Raja Prithwi Chand Lall Choudhary’s case (supra) further observed:
"Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice".

28. The position with regard to conclusive nature of the precedent obtained in England till the following practice statement was made by Lord Gardiner, L.C. in Lloyds Bank Ltd. vs. Dawson and Ors. [Note 1966 (3) All E.R. 77] on behalf of himself and the Lords of Appeal is Ordinary,
"They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so".

29. The principle in regard to departing from an earlier view by the House, after the said practice statement, is reflected in the speech of Lord Reid in Jones vs. Secretary of State for Social Services, Hudson vs. Secretary of State for Social Services (conjoined appeals) [1972 (1) All E.R. 145], who observed:
"The old view was that any departure from rigid adherence to precedent would weaken that certainly. I did not and do not accept that view. It is notorious that where an existing decision is disapproved but cannot be overruled courts tend to distinguished it on inadequate grounds. I do not think that they act wrongly in so doing; they are adopting the less bad of the only alternatives open to them. But this is bound to lead to uncertainty for no one can say in advance whether in a particular case the court will or will not feel bound to follow the old unsatisfactory decision. On balance it seems to me that overruling such a decision will promote and not impair the certainty of the law.
But that certainty will be impaired unless this practice is used sparingly. I would not seek to categories cases in which it should or cases in which it should not be used. As time passes experience will supply some guide. But I would venture the opinion that the typical case for reconsideration an old decision is where some broad issue is involved and that it should only be in rare cases that we should reconsider questions of construction of statutes or other documents".

30. In Fitzleet Estates Ltd. vs. Cherry (Inspector of Taxes) [1977 (3) All E.R. 996] Lord Wilberforce observed:
"My Lords, in my firm opinion, the 1966 Practice Statement was never intended to allow and should not be considered to allow such a course. Nothing could be more undesirable, in fact, than to permit litigants, after a decision has been given by this House with all appearance of finality , to return to this House in the hope that a differently constituted committee might be persuaded to take the view which its predecessors rejected. True that the earlier decision was by majority: I say nothing as to its correctness or as to the validity of the reasoning by which it was supported. That there were two eminently possible views is shown by the support for each by at any rate two members of the House. But doubtful issues have to be resolved and the law knows no better way of resolving them than by the considered majority opinion of the ultimate tribunal. It requires much more than doubts as to the correctness of such opinion to justify departing from it".
Lord Edmund-Davies observed:
"MY Lords, I respectfully share your views that the Chancery Lane decision (1966 (1) All. E.R. 1) was correct. But even had I come to the opposite conclusion, the circumstances adverted to are such that I should not have thought it ‘right’ to depart from it now. To do so would have been to open the floodgates to similar appeals and thereby to impair that reasonable certainty in the law which the Practices Statement [Note (3) All. E.R. 77] itself declared to be ‘an indispensable foundation upon which to decide what is the law and its application to individual cases".

31. The law existing in other countries is aptly summarised by Aharon Barak in his treatise ["Judicial Discretion" at page 234] thus:
"The authority to overrule exists in most countries, whether of civil law or common law tradition. Even the House of Lords in the United Kingdom is not bound any more by its precedents. The Supreme Court of the United States was never bound by its own decisions, and neither are those of Canada, Australia, and Israel".

32. To what extent the principle of stare decisis binds this Court, was considered in the case of Keshav Mills Co. Ltd. (supra). The question before a Constitution Bench of Seven learned Judges of this Court was: to what extent the principle of stare decisis could be pressed into service where the power of this Court to overruled its earlier decisions was invoked . ‘The Court expressed its view thus:
"When this Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions."

33. In Maganlal Chhaganlal’s case (supra), a Bench of seven learned Judges of this Court considered, inter alia, the question : whether a judgment of the Supreme Court in Northern India Caterers’ case was required to be overruled. Khanna, J. observed:
"At the same time, it has to be borne in mind that certainty and continuity are essential ingredients of rule of law. Certainty in law would be considerably croded and suffer a serious set back if the highest court of the land readily overruled the view expressed by it in earlier cases, even though that view has the field for a number of years. In quite a number of cases which came up before this Court, two views are possible, and simply because the Court considers that the view not taken by the Court in the earlier case was a better view of the matter would not justify the overruling of the view. The law laid down by this Court is binding upon all courts in the country under Article 141 of the Constitution and numerous cases all over the country are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the view taken by this Court. It would create uncertainty, instability and confusion if the law propounded by this Court on the basis of which numerous cases have been decided and many transactions have taken place is held to be not the correct law".

34. In the case of The Indian Aluminium Co. Ltd. (supra), the question before a Constitution Bench of five learned Judges was: when can this Court properly dissent from a previous view?

35. In regard to the effect of an earlier order of this Court Sawant, J. speaking for the Constitution Bench observed in Cauvery Water Disputes Tribunal’s case (supra) as follows:
"The decision of this Court on a question of law is binding on all courts and authorities. Hence under the said clause the President can refer a question of law only when this court has not decided it. Secondly, a decision given by this Court can be reviewed only under Article 137 read with Rule 1 of Order XL of the Supreme Court Rules, 1966 and on the conditions mentioned therein. When, further, this Court overrules the view of law expressed by it in an earlier case, it does not do so sitting in appeal and exercising an appellate jurisdiction over the earlier decision. It does so in exercise of its inherent power and only in exceptional circumstances such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts of if it is manifestly wrong and productive of public mischief. [See. Bengal Immunity Company Ltd. vs. State of Bihar [1955 (2) S.C.R. 603]

36. In the cases of Ramdeo Chauhan (supra) and Lily Thomas (supra), the question before the Court was, the scope of the power of review of a judgment of this Court under Article 137 of the Constitution read with Section 114, Order XL VII of the C.P.C. and Order XL Rule 1 of the Supreme Court Rules, 1966.

37. In the case of Ex Parte Pinochet Ugarte (No.2) (supra), on November 25, 1998 the House of Lords by majority 3:2 restored warrant of arrest of Senator Pinochet who was the Head of the State of Chile and was to stand trial in Spain for some alleged offences. It came to be known later that one of the Law Lords (Lord Hoffmann), who heard the case, had links with Amnesty International (A.I.) which had become a party to the case. This was not disclosed by him at the time of the hearing of the case by the House. Pinochet Ugarte, on coming to know of that fact, sought reconsideration of the said judgment of the House of Lords on the the ground of an appearance of bias not actual bias. On the principle of disqualification of a judge to hear a matter on the ground of appearance of bias it was pointed out.
"The principle that a judge was automatically disqualified from hearing a matter in his won cause was not restricted to cases in which he had a pecuniary interest in the outcome, but also applied to cases where the judge’s decision would lead to the promotion of a cause in which the judge was involved together with one of the parties. That did not mean that judges could not sit on cases concerning charities in whose work they were involved, and judges would normally be concerned to recuse themselves or disclose the position to the parties only where they had an active role as trustee or director of a charity which was closely allied to and acting with a party to the litigation. In the instant case, the facts were exceptional in that AI was a party to the appeal, it has been joined in order to argue for a particular result and the Law Lord was a director of a charity closely allied to AI and sharing its objects. Accordingly, he was automatically disqualified from hearing the appeal. The petition would therefore be granted and the matter referred to another committee of the House or rehearing per curiam".

38. On the point of jurisdiction of the House of correct any injustice in an earlier order, it was observed:
"In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered. In Cassell & Co. Ltd. vs. Broome (No. 2) [1972(2) All ER 849 = 1972 AC 1136] your Lordships varied an order for costs already made by the House in circumstances where the parties had not had a fair opportunity to address argument on the point".
And it was held,
"An appeal to the House of Lords will only be reopened where a party through no fault of its own, has been subjected to an unfair procedure. A decision of the House of Lords will not be varied rescinded merely because it is subsequently thought to be wrong".

39. We may notice here that in these cases except in Raja Prithwi Chand Lall Choudhary (supra) and Ex parte Pinochet Ugarte (No.2) (supra), the question was in what circumstances the ratio in the earlier judgment of the highest court having precedent value could be departed. In the aforementioned two cases the decision was rendered on an application seeking reconsideration of the final judgment of the Federal Court and House of Lords respectively. In view of the specific provision of Article 137 of the Constitution read with Order XL Rule 1 of the Supreme Court Rules, conferring power of review on this Court, the problem in entertaining a review petition against its final judgment which its precursor - the Federal Court - had to face, did not arise before this Court.

40. The petitioners in these writ petitions seek re-consideration of the final judgments of this Court after they have been unsuccessful in view petitions and in that these cases are different from the cases referred to above. The provision of Order XL Rule 5 of the Supreme Court Rules bars further application for review in the same matter. The concern of the Court now is whether any relief can be given to the petitioners who challenge the final judgment of this Court, though after disposal of review petitions, complaining of the gross abuse of the process of Court and irremedial injustice. In a State like India, governed by rule of law, certainty of law declared and the final decision rendered on merits in a lis between the parties by the highest court in the country is of paramount importance. The principle of finality is insisted upon not on the ground that a judgment given by the apex Court is impeccable but on the maximum "Interest reipublicae ut sit finis litium [It concerns the state that there be an end of lawsuits. It is in the interest of the State that there should be an end of law-suit].

41. At one time adherence to the principle of stare decisis was so rightly followed in the courts governed by the English Jurisprudence that departing from an earlier precedent was considered heresy. With the declaration of the practice statement by the House of Lords, the highest court in England was enabled to depart from a previous decision when it appeared right to do so. The next step forward by the highest court to do justice was to review its judgment inter partie to correct injustice. So far as this Court is concerned, we have already pointed out above that it has been conferred the power to review its own judgments under Article 137 of the Constitution. The role of judiciary merely to interpret and declare the law was the concept of bygone age. It is no more open to debate as it is fairly settled that the courts can so mould and lay down the law formulating principles and guidelines as to adapt and adjust to the changing conditions of the society, the ultimate objective being to dispense justice. In the recent years there is a discernable shift in the approach of the final courts in favour of rendering justice on the facts presented before them, without abrogating but by-passing the principle of finality of the judgment. In Union of India and Anr. etc. vs. Raghubir Singh (Dead) by Lrs. etc. etc. [1989 (2) SCC 754] Pathak, C.J. speaking for the Constitution Bench aptly observed:
"But like all principles evolved by man for the regulation of the social order, the doctrine of binding precedent is circumscribed in its governance by perceptible limitations, limitations arising by reference to the need for re-adjustment in a changing society, a re-adjustment of legal norms demanded by a changed social context. This need for adapting the law to new urges in society brings home the truth of the Holmesian aphorism that "the life of the law has not been logic it has been experience" (Oliver Wendell Holmes: The Common Law, p.5), and again when he declared in another study (Oliver Wendell Holmes: Common Carriers and the Common Law, (1943) 9 Curr LT 387, 388) that "the law is forever adopting new principles from life at one end", and "sloughing off" old ones at the other. Explaining the conceptual import of what Holmes had said, Julius Stone elaborated that it is by the introduction of new extra-legal propositions emerging from experience to serve as premises, or by experience-guided choice between competing legal propositions, rather than by the operation of logic upon existing legal propositions, that the growth of law tends to be determined (Julius Stone : "Legal Systems & Lawyers Reasoning, pp. 58-59)"

42. The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment. We are faced with competing principles - ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principle of natural justice or apprehension of bias due to a Judge who participated in decision making process not disclosing his links with a party to the case, or abuse of the process of the court. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty. Almighty alone is the dispenser of absolute justice - a concept which is not disputed but by a few. We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise in the rarest of the rate cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment of the final court in the country should not be open to challenge yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.

43. It may be useful to refer to the judgment of the Supreme Court of United States in Ohio Power Company’s case (supra). In that case the Court of Claims entered judgment for refund of tax, alleged to have been overpaid, in favour of the tax payer. On the application of the Government a writ of certiorari against that judgment was declined by the Supreme Court of United States in October 1955. The Government sought re-hearing of the case by filing another application which was dismissed in December 1955. A second petition for hearing was also rejected in May 1956. However, in June 1956 the order passed in December 1955 was set aside sua sponte (of its own motion) and that case was ordered to be heard along with two other pending cases in which the same question was presented. In those two cases the Supreme Court held against the tax payer and, on the authority of that judgment, reversed the judgment of the Court of Claims. Four learned members of the Court, in per curiam opinion, rested the decision "on the ground of interest in finality of the decision must yield where the interest of justice so required". Three learned members, dissented and held that denial of certiorari had become final and ought not to be disturbed. Two learned members, however, did not participate.

44. This Court in Harbans Singh’s case (supra), on an application under Article 32 of the Constitution filed after the dismissal of special leave petition and the review, reconsidered its judgment. In that case, among others, the petitioner and another person were convicted under Section 302 of I.P.C. and sentenced to death. In the case of one of the remaining two convicts, the Supreme Court commuted the death sentence to life imprisonment. While staying the death sentence of the petitioner, A.N. Sen, J. in his concurring opinion, noticed the dismissal of the petitioner’s special leave, review petitions and the petition for clemency by the President and observed:
"Very wide powers have been conferred on this Court for due and proper administration of justice. Apart from the jurisdiction and powers conferred on this Court under Articles 32 and 136 of the Constitution. I am of the opinion that this Court retains and must retain, an inherent power and jurisdiction for dealing with any extraordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done. This power must necessarily be sparingly used only in exceptional circumstances for furthering the ends of justice".

45. In Antulay’s case (supra), the majority in the seven-Judge Bench of this Court set aside an earlier judgment of the Constitution Bench in a collateral proceeding on the view that the order was contrary to the provisions of the Act of 1952; in the background of that Act without precedent and in violation of the principles of natural justice, which needed to be corrected ex debito justitiae.

46. In Supreme Court Bar Association’s case (supra), on an application filed under Article 32 of the Constitution of India, the petitioner sought declaration that the Disciplinary Committee of the Bar Councils set up under the Advocates Act, 1961, alone had exclusive jurisdiction to inquire into and suspend or debar an advocate from practising law for professional or other misconduct and that the Supreme Court of India or any High Court in exercise of its inherent jurisdiction had no such jurisdiction, power or authority in that regard. A Constitution Bench of this Court considered the correctness of the judgment of this Court in Re: Vinay Chandra Mishra [(1995) 2 SCC 584]. The question which fell for consideration of this Court was: whether the punishment of debarring an advocate from practice and suspending his licence for a specified period could be passed in exercise of power of this Court under Article 129 read with Article 142 of the Constitution of India. There an errant advocate was found guilty of criminal contempt and was awarded the punishment of simple imprisonment for a period of six weeks and was also suspended from practice as an advocate for a period of three years from the date of the judgment of this Court for contempt of the High Court of Allahabad. As a result of that punishment all elective and nominated offices/posts then held by him in his capacity as an advocate had to be vacated by him. Elucidating the scope of the curative nature of power conferred on the Supreme Court under Article 142, it was observed:
"The plenary powers of the Supreme Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. this power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which the Supreme Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. It is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Supreme Court to prevent "clogging or obstruction of the stream of justice".
Inspite of the width of power conferred by Article 142, the Constitution Bench took the view that suspending the advocate from practice and suspending his licence was not within the sweep of the power under the said Article and overruled the judgment in Re. V.C. Mishra’s case (supra).

47. In M.S. Ahlwat’s case (supra), the petitioner, who was found guilty of forging signatures and making false statements at different stages before this Court, was inflicted punishment under Section 193 IPC in Afzal vs. State of Haryana [1996(7) SCC 397]. He filed an application under Article 32 of the Constitution assailing the validity of that order. Taking note of the complaint of miscarriage of justice by the Supreme Court in order his incarceration which ruined his career, acting without jurisdiction or without following the due procedure, it was observed that to perpetuate an error was not virtue but to correct it was a compulsion of judicial conscience. The correctness of the judgment was examined and the error was rectified.

48. In the cases discussed above this Court reconsidered its earlier judgments, inter alia, under Articles 129 and 142 which confer very wide powers on this Court to do complete justice between the parties. We have already indicated above that the scope of the power of this Court under Article 129 as a court of record and also adverted to the extent of power under Article 142 of the Constitution.

49. The upshot of the discussion in our view is that this Court to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power.

50. The next step is to specify the requirements to entertain such a curative petition under the inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground that except when very strong reasons exists, the Court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained.

51. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner.

52. The petitioner, in the curative petition, shall ever specifically that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. The curative petition shall contain a certification by a Senior Advocate with regard to the fulfillment of the above requirements.

53. We are of the view that since the matter relates to re-examination of a final judgment of this Court, though on limited ground, the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders. It shall be open to the Bench at any stage of consideration of the curative petition to ask a senior counsel to assist it as amicus curiae. In the event of the Bench holding at any stage that the petition is without any merit and vexatious, it may impose exemplary costs on the petitioner.

54. Insofar as the present writ petitions are concerned, the Registry shall process them, notwithstanding that they do not contain the averment that the grounds urged were specifically taken in the review petitions and the petitions were dismissed in circulation.

55. The point is accordingly answered.
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JUDGMENT
Banerjee, J.:- I have had the privilege of going through a very lucid expression of opinion by brother Quadri and while recording my concurrence therewith I wish to add a few paragraphs of my own.

2. The issue involved presently though not a concept within the abmit of doctrine of stare decisis but akin thereto to the effect as to the scope or finality of the decision of this Court in the normal course of events. There cannot possibly be any manner of doubt that the matter once dealt with by this Court attains a state of finality and no further grievance can be had in regard thereto. The founding fathers of the Constitution decidedly provided that the decision of this Court as final, conclusive and binding - final and conclusive inter-parties and binding on all. But the makers have also conferred a power of review of the Judgment of this Court and the perusal of the provisions of Articles 137 and 145 makes it abundantly clear. In the event, however, a party stands aggrieved by reason of a rejection of review, the question posed as to whether a litigant thereof a suffer the onslaught for all times to come and in perpetuity when on the face of the Order it appears to be wholly without jurisdiction or in violation of natural justice - a further factum of there being a bias or gross or manifest injustice, which shocks the conscience of a reasonable man: needless to record that the facts, as noticed above, are not only unwarranted but possibly in the region of impossibility or more appropriately improbable.

3. Mr. K.K. Venugopal, the learned senior counsel appearing in support of one of the matters before this Bench, has been rather emphatic in his submissions as regards the apprehension of bias and it is his contention that a mere likelihood of bias should prompt this Court to allow a further consideration of the matter. Incidentally, be it noted that in all these matters, petitions under Article 32 of the Constitution have been filed with a prayer for issuance of the Writ of Certiorari. We called for the records in some of the matters, which stand concluded by decisions of this Court and the principal issue thus arises as to the maintainability of a petition under Article 32 of the Constitution. There is no denial of the fact that the right exists to move this Court for enforcement of the rights conferred by Part III of the Constitution and stands conferred in terms of Article 32 and the language used therein is of widest possible amplitude but as regards the issuance of writs, the view seems to be rather well settled in the negative.

4. About four decades ago, in Naresh Shridhar Marajkar and others vs. State of Maharashtra and another (1966) 3 SCR 744, a nine Judge Bench of this Court in no uncertain terms negatived the availability of writ jurisdiction under Article 32 and with utmost clarity and felicity of expression stated:
"We are, therefore, satisfied that so far as the jurisdiction of this Court to issue writ of certiorari is concerned, it is impossible to accept the argument of the petitioners that judicial orders passed by High Courts in or in relation to proceedings pending before them, are amenable to be corrected by exercise of the said jurisdiction. We have no doubt that it would be unreasonable to attempt to rationalise the assumption of jurisdiction by this Court under Art. 32 to correct such judicial orders on the fanciful hypothesis that High Courts may pass extravagant orders in or in relation to matters pending before them and that a remedy by way of a writ of certiorari should, therefore, be sought for and be deemed to be included within the scope of Art. 32. The words used in Art. 32 are no doubt wide; but having regard to the considerations which we have set out in the course of this judgment, we are satisfied that the impugned order cannot be brought within the scope of this Court’s jurisdiction to issue a writ of certiorari under Art. 32; to hold otherwise would be repugnant to the well-recognised limitations within which the jurisdiction to issue writs of certiorari can be exercised and inconsistent with the uniform trend of this Court’s decisions in relation to the said point."

5. Two decades later, this Court in A.R. Antulay vs. R.S. Nayak and another (1988) 2 SCC 602, relying upon the nine Judge Bench Judgment, came to a conclusion that in view of the decision in Mirajkar case, it must be taken as concluded that the judicial proceedings in this Court are not subject to the writ jurisdiction under Article 32 of the Constitution and that is so on account of the fact that Benches of this court are not subordinate to larger Benches thereof and certiorari is not admissible thus for quashing of the Orders made on the judicial side of the court. In Smt. Triveniben vs. State of Gujarat (1989) 1 SCC 678, a Constitution Bench of this court also in no uncertain terms laid down that it will not be open to this Court in exercise of its jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent Court. To complete the list, however, a very recent decision of this Court in Ajit Kumar Barat vs. Secretary, Indian Tea Association and others (2001) 5 SCC 42 one of us (Shivaraj V. Patil, J) upon consideration of Mirajkar (supra) and Antulay (supra) came to a conclusion that authority of an Order passed by this Court itself cannot be subjected to writ jurisdiction of this Court.

6. On the wake of the aforesaid, there is thus no manner of doubt that the plea of the availability of writ jurisdiction, as envisaged under Article 32 of the Constitution, cannot be sustained and the law seems to be well settled on this score and as such we need not delve into neither dilate any further thereon.

7. Having regard to the conclusion, as above, does it, however, mean and imply a closed door even if the Order of this Court depicts that the same stands in violation of natural justice adversely and seriously affecting the rights of the parties or the same depicts manifest injustice rendering the order a mockery of justice - can it be said that the binding nature of an Order of this Court, cannot thus be ever be corrected even if it causes insurmountable difficulty and immense public injury - the debate has a very large and wide ramification and thus will have to be dealt with in a manner with care and caution and with proper circumspection as regards its impact - the principal basis being the concept of justice and this is where the principle of ex debito justitiae comes to play. Can it be said that the justice delivery system of the country is such that in spite of noticing a breach of public interest with a corresponding social ramification, this Court would maintain a delightful silence with a blind eye and deaf ear to the cry of a society in general or even that of a litigant on the ground of finality of an Order as passed by this Court? True the finality shall have to be maintained but is it the principal requirement, which the law envisages? Roscoe Pound stated that flexibility is the greatest virtue of law and thus its applicability should also be flexible rather than a rigid insistence on a strict format. Justice of the situation shall have to be considered with a fair perception of such a concept rather than with a blinking light- attention ought to be focussed on a larger social perspective since law is meant for the society and if flexibility is its virtue, which law enjoys, its corresponding primary duty thus would be to change the legal horizon and perspective with the appropriate socio-economic change. The law must follow the society rather than abandon the society and carry on it strict track without any deviation or without being hindered of the social changes and thus resultantly face a social catastrophe.

8. Lord Denning’s exposition of the doctrine ‘ex debito justitiae’ in A/s Cathrineholm vs. Norequipment Trading Ltd. (1972) (2) ALL ER 538) has been stated to be rather restrictive, but since basically the same stands out to be on the concept of justice, speaking for myself do not subscribe to such a criticism. The Master of the Rolls stated that if the Judgment is irregular - that is, which ought not to have been signed at all - then the defendant is entitled ex debito justitiae to have it set aside but in the event it is otherwise regular, question of setting aside of the Judgment would not arise. It is, thereafter, however, arises, the question as to the true effect of Regular and Irregular Judgments: Since the issue involves a much wider debate, we refrain ourselves to attribute meanings thereto or to dilate on the ramifications of the terminology having regard to further enunciation of the doctrine by both the English Courts and the Indian Supreme Court.

9. Adverting to the true purport of the maxim, therefore, it is no gainsaid that "the same relates to and arises from the concept of justice : In the event there appears to be infraction of the concept, question of there being a turn around and thereby maintaining a total silence by the law Courts would not arise. It is on this score, the learned Attorney General for India, Appearing as Amicus Curiae, contended that Supreme Court has the jurisdiction to exercise this inherent power for the ends of justice or to prevent abuse of the process of the court. Though we are not inclined to ascribe an Order of this court as an abuse of the process of the Court, but the factum of the availability of inherent power for the ends of justice cannot in any way be decried. The Constitution of India assigned a pivotal role on to the Supreme Court providing therein the supremacy of law with the rational being justice is above all. The exercise of inherent power of this Court also stands recognised by Order XLVII Rule 6 of the Supreme Court Rules, 1966, which reads as below:
"6 Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

10. The observations of this Court in A.R. Antulay (supra) lends concurrence to such an exercise of power by this court ex debito justitiae. The Court can exercise its inherent power in the event of there being an error brought to the notice of the Court. Mukharji, J (as he then was) in paragraph 40 of the Judgment in A.R. Antulay (supra) very lucidly and with utmost precision stated:
"The question of validity, however, is important in that the want of jurisdiction can be established solely by a superior court and that, in practice, no decision can be impeached collaterally by any inferior court. But the superior court can always correct its own error brought to its notice either by way of petition or ex debito justitiae. See Rubinstein’s Jurisdiction and Illegality)."

11. Incidentally a Seven Judge Bench of this Court in Synthetics and Chemicals Ltd. and others vs. State of U.P. and others (1990) 1 SCC 109 relied upon another Judgment of Lord Denning in Ostime (Inspector of Taxes) vs. Austrilian Mutual Provident Society (1959 (3) ALL ER 245 : 1960 AC 459) and the dissent noting by Justice Jackson in the case of Commonwealth of Massachusetts et al vs. USA (92 L ed 968), wherein in similar tone it has been stated that as soon as one finds a journey in the wrong direction, there should always be an attempt to turn to the right direction since law courts ought to proceed for all times in the right path rather than in the wrong. Adverting to the issue of inherent power, the observations of this Court in S. Nagaraj and others vs. State of Karnataka and another (1993 Supp. (4) SCC 595) seems to be rather apposite. This Court in paragraph 19 of the report, upon relying on the fundamental principles of jurisprudence that justice is above all, stated as below:
"Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage or justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury vs. Sukhraj Rai (AIR 1941 FC 1,2 : 1940 FCR 78 : (1941) 1 MLJ Supp 45) the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajinder Narain Rae vs. Bijai Govind Singh [(1836) 1 Moo PC 117 : 2 MIA 181 : 1 Sar 175] that an order made by the Court was final and could not be altered:
"... nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in .... The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.
Basis for exercise of the power was stated in the same decision as under:
"It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard."
Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercise to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makes who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression ‘for any other sufficient reason’ in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice."

12. In one of its recent pronouncements [Supreme Court Bar Association vs. Union of India and another (1998) (4) SCC 409)] this Court has had the occasion to deal with the issue at some length relying upon Article 129 read with Article 142 of the Constitution. The plenary powers of the Supreme Court, as envisaged under Article 142, stand out to be complimentary to those powers to do complete justice between the parties and it is on this score in paragraphs 47 and 48 of the report, this Court observed:
"47 The plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which this Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. There is not doubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Court to prevent "clogging or obstruction of the stream of justice". It, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to "supplant" substantive law applicable to the case or case under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. Punishing a contemner advocate, while dealing with a contempt of court case by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142. The construction of Article 142 must be functionally informed by the salutary purposes of the article, viz., to do complete justice between the parties. It cannot be otherwise. As already noticed in a case of contempt of court, the contemner and the court cannot be said to be litigating parties.
48. The Supreme Court in exercise of its jurisdiction under Article 142 has the power to make such order as is necessary for doing complete justice "between the parties in any cause or matter pending before it". The very nature of the power must lead the Court to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision governing a subject, except perhaps to balance the equities between the conflicting claims of the litigating parties by "ironing out the creases" in a cause or matter before it. Indeed this Court is not a court of restricted jurisdiction of only dispute-settling. It is well recognised and established that this Court has always been a law-maker and its role travels beyond merely dispute-settling. It is a "problem-solver in the nebulous areas" (see K. Veeraswami vs. Union of India (1991) 3 SCC 655 : 1991 SCC (Cri) 734) but the substantive statutory provisions dealing with the subject-matter of a given case cannot be altogether ignored by this Court, while making an order under Article 142. Indeed, these constitutional powers cannot, if any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject."

13. Incidentally, this Court stands out to be an avenue for redressal of grievance not only in its revisional jurisdiction as conferred by the Constitution but as a platform and forum for every grievance in the country and it is on this context Mr. Shanti Bhushan, appearing in support of the some of the petitioners, submitted that the Supreme Court in its journey for over 50 years has been able to obtain the confidence of the people of the country, whenever the same is required - be it the atrocities of the police or a public grievance pertaining to a governmental action involving multitudes of problems. It is the Supreme Court, Mr. Shanti Bhushan contended, where the people feel confident that justice is above all and would be able to obtain justice in its true form and sphere and this is beyond all controversies. It has been contended that finality of the proceeding after an Order of the Supreme Court, there should be, but that does not preclude or said to preclude this Court from going into the factum of the petition for gross injustice caused by an Order of the Supreme Court itself under the inherent power being an authority to correct its errors - any other view should not and ought not be allowed to be continued. Needless to record here, however, that review jurisdiction stand foisted upon this Court in terms of the provisions of the Constitution, as noticed hereinbefore and it is also well-settled that a second review petition cannot be said to maintainable. Reference maybe made in this context to a decision of this Court in the case of J. Ranga Swamy vs. Govt. of A.P. & Ors. (AIR 1990 SC 535), wherein this Court in paragraph 3 stated as below:-
"We are clearly of the opinion that these applications are not maintainable. The petitioner, who appeared in person, referred to the judgment in Antulay’s case (1988) 2 SCC 602 : (AIR 1988 SC 1531). We are, however, of the opinion that the principle of that case is not applicable here. All the points which the petitioner urged regarding the constitutionality of the Government orders in question as well as the appointment of respondent instead of petitioner to the post in question had been urged before the Bench, which heard the civil appeal and writ petitions originally. The petitioner himself stated that he was heard by the Bench at some length. It is, therefore, clear that the matters were disposed of after a consideration of all the points urged by the petitioner and the mere fact that the order does not discuss the contentions or give reasons cannot entitle the petitioner to have what is virtually a second review."

14. True, due regard shall have to have as regards opinion of the Court in Ranga Swamy (supra), but the situation presently centres round that in the event of there being any manifest injustice would the doctrine of ex debito justitiae be said to be having a role to play in sheer passivity or to rise above the ordinary heights as it preaches that justice is above all. The second alternative seems to be in consonance with time and present phase of socio-economic conditions of the society. Manifest justice is curable in nature rather than incurable and this court would lose its sanctity and thus would belie the expectations of the founding fathers that justice is above all. There is no manner of doubt that procedural law/procedural justice cannot overreach the concept of justice and in the event an Order stands out to create manifest injustice, would the same be allow to remain in silenco so as to affect the parties perpetually or the concept of justice ought to activate the Court to find a way out to resolve the erroneous approach to the problem. Mr. Attorney General, with all the emphasis in his command, though principally agreed that justice of the situation needs to be looked into and relief be granted if so required but on the same breath submitted that the Court ought to be careful enough to trade on the path, otherwise the same will open up Pandora’s box and thus, if at all, in rarest of the rare cases the further scrutiny may be made. While it is true that law courts has overburdened itself with the litigation and delay in disposal of matters in the subcontinent is not unknown and in the event of any further appraisal of the matter by this Court, it would brook on further delay resulting in consequences which are not far to see but that would by itself not in my view deter this Court from further appraisal of the matter in the event the same, however, deserve such an additional appraisal - The note of caution sounded by Mr. Attorney as regards opening up of pandora’s box strictly speaking, however, though may be of very practical in nature but the same apparently does not seem to go well with the concept of justice as adumbrated in our constitution. True it is, that practicability of the situation needs a serious consideration more so when this Court could do without it for more than 50 years, which by no stretch of imagination can be said to be a period not so short. I feel it necessary, however, to add that it is not that we are not concerned with the consequences of reopening of the issue but the redeeming feature of our justice delivery system, as is prevalent in the country, is adherence to proper and effective administration of justice in stricto. In the event there is any affectation of such an administration of justice either by way of infraction of natural or an order being passed wholly without jurisdiction or affection of public confidence as regards the doctrine of integrity in the justice delivery system technicality ought not to out-weigh the course of justice - the same being the true effect of the doctrine of ex debito justitiae. The oft quoted statement of law of Lord Hewart, CJ in R vs. Susssex Justices, ex p McCarthy (1924 (1) KB 256) that it is of fundamental importance that justice should not only be done, should manifestly and undoubtedly be seem to be done had this doctrine underlined and administered therein. In this context, the decision of the House of Lords in R. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 2) seem to be an ipoc making decision, wherein public confidence on the judiciary is said to be the basic criteria of the justice delivery system - any act or action even if it a passive one, if erodes or even likely to erode the ethics of judiciary, matter needs a further look.

15. Brother Quadri has taken very great pains to formulate the steps to be taken and the methodology therefor, in the event of there being an infraction of the concept of justice, as such further dilation would be an unnecessary exercise which I wish to avoid since I have already recorded my concurrence therewith excepting, however, lastly that curative petitions ought to be treated as a rarity rather than regular and the appreciation of the Court shall have to be upon proper circumspection having regard to the three basic features of our justice delivery system to wit, the order being in contravention of the doctrine of natural justice or without jurisdiction or in the event of there is even a likelihood of public confidence being shaken by reason of the association or closeness of a judge with the subject matter in dispute. In my view, it is now time that procedural justice system should give way to the conceptual justice system and efforts of the law Court ought to be so directed. Gone are the days where implementation of draconian system of law or interpretation thereof were insisted upon - Flexibility of the law Courts presently are its greatest virtue and as such justice oriented approach is the need of the day to strive and forge ahead in the 21st century. No costs.

Shyam Bina Unye - Pandit Jasraj - Krishna Bhajan

Clouds and Waves: by Rabindranath Tagore

Clouds and Waves: Rabindranath Tagore

Mother, the folk who live up in the clouds call out to me-
"We play from the time we wake till the day ends.
We play with the golden dawn, we play with the silver moon."
I ask, "But how am I to get up to you ?"
They answer, "Come to the edge of the earth, lift up your
hands to the sky, and you will be taken up into the clouds."
"My mother is waiting for me at home, "I say, "How can I leave
her and come?"
Then they smile and float away.
But I know a nicer game than that, mother.
I shall be the cloud and you the moon.
I shall cover you with both my hands, and our house-top will
be the blue sky.
The folk who live in the waves call out to me-
"We sing from morning till night; on and on we travel and know
not where we pass."
I ask, "But how am I to join you?"
They tell me, "Come to the edge of the shore and stand with
your eyes tight shut, and you will be carried out upon the waves."
I say, "My mother always wants me at home in the everything-
how can I leave her and go?"
They smile, dance and pass by.
But I know a better game than that.
I will be the waves and you will be a strange shore.
I shall roll on and on and on, and break upon your lap with
laughter.
And no one in the world will know where we both are.

Judgment of the Supreme Court of India: Child custody:Private International Law

This is a very interesting and significant judgment passed by the Supreme Court of India in the case of custody of children, especially with regard to the principles of private international law and the comity of nations. This case highlights the complexities involving the large Indian diaspora overseas and the problems faced by persons of Indian origin, in the areas of family law and child custody cases. Due to its importance in Indian legal jurisprudence and its in-depth analysis of the law, the judgment is quoted in its entirety.


SUPREME COURT OF INDIA
Hon'ble Mr. Justice Tarun Chatterjee, Mr. Justice R.M. Lodha and Hon'ble Dr. Justice B.S. Chauhan
Dr. V. Ravi Chandran Petitioner
versus
Union of India and others Respondents

Case No: Writ Petition (Crl.) No. 112 of 2007
Date of Decision: 17 November 2009


R.M. Lodha, J.:— Adithya is a boy of seven, born on July 1, 2002, in the United States of America. He is a foreign national. The petition before us is by the father - Dr. V . Ravi Chandran--praying for a writ of habeas corpus for the production of his minor son Adithya and for handing over the custody and his passport to him.

2. On August 28, 2009, this Court passed an order requesting Director, Central Bureau of Investigation (CBI) to trace minor Adithya and produce him before this Court. The necessity of such order arose as despite efforts made by the police officers and officials of different states, Adithya and his mother - respondent no. 6--Vijayasree Voora--could not be traced and their whereabouts could not be found for more than two years since the notice was issued by this Court. In pursuance of the order dated August 28, 2009, CBI issued look out notices on all India basis through heads of police of States, Union Territories and Metropolitan Cities and also alert notices through Deputy Director, Bureau of Immigration (Immigration), Ministry of Home Affairs, New Delhi and flashed photographs of the child Adithya and his mother Vijayasree Voora. Ultimately with its earnest efforts, CBI traced Adithya and his mother Vijayashree Voora in Chennai on October 24, 2009 and brought them to Delhi and produced the child along with his mother at the residential office of one of us (Tarun Chatterjee, J.) on October 25, 2009. On that day, the CBI authorities were directed to keep the child under their custody and produce him before the Court on October 27, 2009. Respondent no. 6 was also directed to be produced on that date. On October 27, 2009, the matter was adjourned for November 4, 2009 since respondent no.6 wanted to engage a lawyer and file a counter affidavit. On November 4, 2009, matter was adjourned to November 10, 2009 and then to November 12, 2009. The petitioner 2 was permitted to meet the child for one hour on November 10, 2009 and November 12, 2009. In the meanwhile, respondent no. 6 has filed counter affidavit in opposition to the habeas corpus petition and petitioner has filed rejoinder affidavit to the counter affidavit filed by respondent no.6.

3. We heard Ms. Pinky Anand, learned senior counsel for the petitioner and Mr. T.L.V. Iyer, learned senior counsel for respondent no. 6. Now since minor Adithya has been produced, the only question that remains to be considered is with regard to the prayer made by the petitioner for handing over the custody of minor Adithya to him with his passport.

4. But before we do that, it is necessary to notice few material facts. Dr. V. Ravi Chandran - petitioner - is an American citizen. He and respondent no. 6 got married on December 14, 2000 at Tirupathi, Andhra Pradesh according to Hindu rites. On July 1, 2002, Adithya was born in United States of America. In the month of July 2003, respondent no. 6 approached the New York State Supreme Court for divorce and dissolution of marriage. A consent order governing the issues of custody and guardianship of minor Adithya was passed by the New York State Supreme Court on April 18, 2005. The Court granted joint custody of the child to the petitioner and respondent no. 6 and it was stipulated in the order to keep the other party informed about the whereabouts of the child. On July 28, 2005, a Separation Agreement was entered between the petitioner and respondent no.6 for distribution of marital property, spouse maintenance and child support. As regards custody of the minor son Adithya and parenting time, the petitioner and respondent no. 6 consented to the order dated April 18, 2005. On September 8, 2005, the marriage between the petitioner and respondent no.6 was dissolved by the New York State Supreme Court. Child custody order dated April 18, 2005 was incorporated in that order.

5. Upon the petition for modification of custody filed by the petitioner and the petition for enforcement filed by him and upon the petition for enforcement filed by respondent no.6 before the Family Court of the State of New York, on June 18, 2007, upon the consent of both parties, inter - alia, the following order came to be passed:
"ORDERED, the parties shall share joint legal and physical custody of the minor child; and it is further
ORDERED, that commencing during August 2007, Adithya shall reside in Allen, Texas; and it is further
ORDERED, that the parties acknowledge that it is the intention of the parties to reside within the same community. As such, it is the mother's current intention to relocate to Texas, within a forty (40) mile radius of the father's residence. If the mother does relocate to a forty (40) mile radius of the father's residence (which shall be within a twenty (20) mile radius from the child's school),, the parties shall equally share physical custody of Adithya. The parties shall alternate physical custody on a weekly basis, with the exchange being on Friday, at the end of the School day, or at the time when school would ordinarily let out in the event that there is no school on Friday; ....................
.....................................................................
.....................................................................
ORDERED, that in the event that the mother does not relocate within forty (40) miles from the father's residence located in Allen, Texas (and within twenty (20) miles of Adithya's school), the mother shall have custodial time with the minor child, as follows:
A. On Alternating weekends from Friday, at the end of the school day until Monday, prior to the beginning of school, commencing during the first week of September, 2007. Such periods of custodial time shall take place within forty (40) miles from the father's residence located in Allen, Texas. In the event that there is no school on the Friday of the mother's weekend, she shall have custodial time with the child beginning at 7.00 a.m. on Friday morning, and, in the event that there is no school on Monday of the mother's custodial weekend, she shall have custodial time until 5.00 p.m. on Monday, and
B. For ten (10) consecutive days during Spring vacation from school; and
C. For the entirety of the Christmas recess from School, except for Christmas Eve and Christmas day, which shall be with the father. In the event that the school recess is prior to Christmas Eve, the mother shall have the right to have custodial time during those recessed days to long as she produces the child at the father's residence for Christmas Eve and Christmas day ; and
D. During the following holidays:
i) Mother's birthday, which is on April 25;
ii) Mother's Day;
iii) Hindu Festival of Diwali and Deepavali;
iv) Adithya's birthday (July 1) in alternating years;
v) Thanks giving in alternating years (so that the mother has custodial time during even - numbered years and the father has custodial time during odd - numbered years);
vi) New Year's Day in alternating years (so that the mother has custodial time during even - numbered years and the father has custodial time during odd -numbered years);.............................
............................................................
ORDERED, that the parties shall share the summer recess from school so that the mother has custodial time for a total of up to fifty (50) days on a schedule so that each party has custodial time for 4 consecutive weeks, with the mother's custodial time commencing on the Monday following the final day of school..........
ORDERED, for the summer of 2007, the mother shall have custodial time from June 18 until June 20; the father shall have custodial time from June 20 until June 24; the mother shall have custodial time from June 25 until July 1; the father shall have custodial time from July 1 until July 6; and the mother shall then have custodial time from July 6 until August 3 and she shall be solely responsible for transporting the child to the father's residence in Allen, Texas on August 3. The father shall have custodial time until the commencement of school. Thereafter the father shall continue to have custodial time until such time as the mother either a) returns from India and/or begins her alternating weekly schedule as set froth herein, or b) moves within 40 miles of the father's residence in Allen, Texas and commences her custodial time during alternating weeks;....................................
.............................................................
.............................................................
ORDERED, that each party agrees that they shall provide the other parent with a phone number and address where the child will be located at all time, and that the other parent shall have reasonable and regular telephone communication with the minor child; and it is further
ORDERED, that each party agrees to provide the other party with the child's passport during each custodial exchange of the minor child, and that each party shall sign and deliver to the other, whatever written authorization may be necessary for travel with the child within the Continental United States or abroad;"..............................................

6. On June 28, 2007 respondent no.6 brought minor Adithya to India informing the petitioner that she would be residing with her parents in Chennai. On August 08, 2007, the petitioner filed the petition for modification (Custody) and Violation Petition (Custody) before the Family Court of the State of New York on which a show cause notice came to be issued to respondent no.6. On that very day, the petitioner was granted temporary sole legal and physical custody of Adithya and respondent no. 6 was directed to immediately turn over the minor child and his passport to the petitioner and further her custodial time with the minor child was suspended and it was ordered that the issue of custody of Adithya shall be heard in the jurisdiction of the United States Courts, specifically, the Albany County Family Court.

7. It transpires that the Family Court of the State of New York has issued child abuse non-bailable warrants against respondent no.6.

8. In the backdrop of the aforenoticed facts, we have to consider--now since the child has been produced--what should be the appropriate order in the facts and circumstances keeping in mind the interest of the child and the orders of the courts of the country of which the child is a national.

9. In re B--'s Settlement, {1940} Ch. 54 Chancery Division was concerned with an application for custody by the father of an infant who had been made a ward of court. The father was a Belgian national and the mother a British national who took Belgian nationality on marriage to him. The infant was born in Belgium. The mother was granted a divorce by a judgment of the Court in Belgium, but the judgment was reversed and the father became entitled to custody by the common law of Belgium. The mother, who had gone to live in England, visited Belgium and was by arrangement given the custody of the infant for some days. She took him to England and did not return him. The infant had been living with mother in England for nearly two years. The father began divorce proceedings in Belgium, and the Court appointed him guardian. Pending the proceedings, the Court gave him the custody and ordered the mother to return the infant within twenty-four hours of service of the order on her. She did not return the infant. The Correctional Court in Brussels fined her for disobedience and sentenced her to imprisonment should the fine be not paid. The Correctional Court also confirmed the custody order. In the backdrop of these facts, the summons taken out by the father that custody of the infant be given to him came up before Morton, J. who after hearing the parties and in view of the provisions of the Guardianship of Infants Act, 1925 observed thus:
"...At the moment my feeling is very strong that, even assuming in the father's favour that there is nothing in his character or habits which would render him unfitted to have the custody of the child, the welfare of the child requires, in all the circumstances as they exist, that he should remain in England for the time being..............................
In the present case the position is that nearly two years ago, when the child was already in England, an interlocutory order was made by the Divorce Court in Belgium giving the custody of the child to the father I do not know how far, if at all, the matter was considered on the footing of what was best for the child at that time, or whether it was regarded as a matter of course that the father, being the guardian by the common law of Belgium and the applicant in the divorce proceedings and the only parent in Belgium, should be given the custody. I cannot regard that order as rendering it in any way improper or contrary to the comity of nations if I now consider, when the boy has been in this country for nearly two years, what is in the best interests of the boy. I do not think it would be right for the Court, exercising its jurisdiction over a ward who is in this country, although he is a Belgian national, blindly to follow the order made in Belgium on October 5, 1937. I think the present case differs from Nugent v. Vetzera {FN10}, the case that was before Page Wood V.-C., and it is to be observed that even in that case, and in the special circumstances of that case, the Vice-Chancellor guarded himself against anything like abdication of the control of this Court over its wards. It does not appear what the Vice-Chancellor's view would have been if there had been evidence, for example, that it would be most detrimental to the health and well-being of the children if they were removed from England and sent to Austria..................................................
........I ought to give due weight to any views formed by the Courts of the country whereof the infant is a national. But I desire to say quite plainly that in my view this Court is bound in every case, without exception, to treat the welfare of its ward as being the first and paramount consideration, whatever orders may have been made by the Courts of any other country."................................................

10. In Mark T. Mc.Kee vs. Eyelyn McKee {1951} A.C. 352, the Privy Council was concerned with an appeal from the Supreme Court of Canada. That was a case where the parents of the infant were American citizens. They were married in America and to whom a son was born in California in July 1940. They separated in December 1940 and on September 4, 1941, executed an agreement which provided, inter- alia, that neither of them should remove the child out of the United States without the written permission of the other. By a judgment of December 17, 1942, in divorce proceedings before the Superior Court of the State of California, the custody of the child was awarded to the father. On August 1, 1945, following applications by the father and the mother, the previous order as to custody was modified to provide full custody of the child to the mother with right of reasonable visitation to the father. Thereafter, and without the consent or knowledge of the mother, the father went from the United States of America with the child into the Province of Ontario. The mother thereupon instituted habeas corpus proceedings in the Supreme Court of Ontario seeking to have the child delivered to her. Wells, J., before whom the matter came held that infant's best interests would be served in the custody of his father. The Court of Appeal for Ontario dismissed the appeal preferred by the mother. However, the Supreme Court of Canada by majority judgment allowed the appeal of the mother and set aside the order of custody of child to the father. On appeal from the Supreme Court of Canada at the instance of the father, the Privy Council held as follows:
"..........For, after reaffirming "the well established general rule that in all questions relating to the custody of an infant the paramount consideration is the welfare of the infant", he observed that no case had been referred to which established the proposition that, where the facts were such as he found them to exist in the case, the salient features of which have been stated, a parent by the simple expedient of taking the child with him across the border into Ontario for the sole purpose of avoiding obedience to the judgment of the court, whose jurisdiction he himself invoked, becomes "entitled as of right to have the whole question retried in our courts and to have them reach a anew and independent judgment as to what is best for the infant". and it is, in effect, because he held that the father had no such right that the judge allowed the appeal of the mother, and that the Supreme Court made the order already referred to. But with great respect to the judge, this was not the question which had to be determined. It is possible that a case might arise in which it appeared to a court, before which the question of custody of an infant came, that it was in the best interests of that infant that it should not look beyond the circumstances in which its jurisdiction was invoked and for that reason give effect to the foreign judgment without further inquiry. But it is the negation of the proposition, from which every judgment in this case has proceeded, namely, that the infant's welfare is the paramount consideration, to say that where the trial judge has in his discretion thought fit not to take the drastic course above indicated, but to examine all the circumstances and form an independent judgment, his decision ought for that reason to be overruled. Once it is conceded that the court of Ontario had jurisdiction to entertain the question of custody and that it need not blindly follow an order made by a foreign court, the consequence cannot be escaped that it must form an independent judgment on the question, though in doing so it will give proper weight to the foreign judgment. What is the proper weight will depend on the circumstances of each case. It may be that, if the matter comes before the court of Ontario within a very short time of the foreign judgment and there is no new circumstance to be considered, the weight may be so great that such an order as the Supreme Court made in this case could be justified. But if so, it would be not because the court of Ontario, having assumed jurisdiction, then abdicated it, but because in the exercise of its jurisdiction it determined what was for the benefit of the infant.
It cannot be ignored that such consequences might follow as are suggested by Cartwright, J. The disappointed parent might meet stratagem by stratagem and, taking the child into the Province of Manitoba, invoke the protection of its courts, whose duty it would then be to determine the question of custody. That is a consideration which, with others, must be weighed by the trial judge. It is not, perhaps, a consideration which in the present case should have weighed heavily.
It has been said that the weight or persuasive effect of a foreign judgment must depend on the circumstances of each case. In the present case there was ample reason for the trial judge, in the first place, forming the opinion that he should not take the drastic course of following it without independent inquiry and, in the second place, coming to a different conclusion as to what was for the infant's benefit."...................................

11. The aforesaid two cases came up for consideration in Harben vs. Harben {1957} 1. W.L.R. 261, wherein Sachs J. observed as follows:
"It has always been the practice of this court to ensure that a parent should not gain advantage by the use of fraud or force in relation to the kidnapping of children from the care of the other spouse, save perhaps where there is some quite overwhelming reason in the children's interest why the status quo should not be restored by the court before deciding further issues. In the present case I am concerned with three young children, two of whom are girls and the youngest is aged only three. It is a particularly wicked thing to snatch such children from the care of a mother, and, in saying that, I have in mind not merely the mother's position but the harm that can be done to the children. No affidavit of the husband tendering either his regrets or any vestige of excuse for his action has been proffered. Further, as I have already mentioned, when first I asked Mr. Syms what was the nature of the case which he might wish to make, if so minded, for depriving these children of a mother's care, he only spoke of her association with a certain man and never suggested that she had in any way whatsoever failed to look after the children properly."

12. In Kernot vs. Kernot {1965} Ch.217, the facts were thus: In May 1961, the plaintiff mother, an Italian lady, married an English man in Italy where both were residents. A boy was born there on March 29, 1962. On October 19, 1963, they obtained in Italian Court a separation order by consent providing therein that custody of the child would remain with father, with rights of access to the mother. On October 29, 1963, the father brought the infant to England with intention to make England his home. The mother commenced wardship proceedings in which she brought a motion for an order that the father return the infant to her in Italy. She also prayed for restraint order against him from taking the infant out of her care. Buckley, J. in these facts held thus:
"So that even where a foreign court has made an order on the merits - which is not the present case, because the only order which has been made was a consent order without any investigation of the merits by the Italian court - that domestic court before whom the matter comes (the Ontario court in the case to which I have just referred, or this court in the case before me) is bound to consider what is in the best interests of the infant; and although the order of the foreign court will be attended to as one of the circumstances to be taken into account it is not conclusive one way or the other. How much stronger must the duty of this court be to entertain the case where the foreign court has not made any order based on any investigation of the case on its merits."

13. In re H. (Infants) (1966) 1 W.L.R. 381 = (1966) 1 All.E.R. 886, the Court of Appeal was concerned with two American boys whose divorced parents were both citizens of United States of America. On December 11, 1964, the Supreme Court of New York State made a consent order directing that the two boys whose custody had been given to the mother should be maintained in her apartment in New York and not be removed from a 50 miles' radius of Peekskill without the prior written consent of the father. However, the mother in March 1965 brought these boys to England and bought a house for herself and children in June 1965. On June 15, 1965, the New York Court ordered the children to be returned to New York. The mother started wardship proceedings in the English court. The father took out motion asking the mother that the two children should be delivered into his care, that he should be at liberty to convey them to New York and that the wardship of the children should be discharged. The Trial Judge held that the justice of the case required the children to be returned without delay to the jurisdiction of the New York court, so that the question of where and with whom they should live might be decided as soon as possible by that court. The mother appealed to the Court of Appeal. Willmer L.J. and Harman L.J. by their separate judgments affirmed the view of the Trial Judge and held that the proper order was to send these two boys back to their State of New York, where they belong (and where the Supreme Court is already seized of their case), and more especially so having regard to the fact that they have been kept in flagrant contempt of New York Court's order. Willmer L.J. agreed with the remark of Cross J. where he said:
"The sudden and unauthorized removal of children from one country to another is far too frequent nowadays, and as it seems to me it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing."
Willmer L.J. went on to hold:
"The judge took the view (and I think it was the right view) that in a case such as the present it was not necessary to go into all the disputed questions between the parents, but that he ought to send these boys back to their own country to be dealt with by the court of their own country, provided that he was satisfied (as he was satisfied, having seen the father himself, and having had the benefit of the view expressed on behalf of the Official Solicitor) that they would come to no harm if the father took them back to the United States; and that this was so, even though it might subsequently turn out, after all the merits of the case had been thoroughly thrashed out in the court in New York, that it would perhaps be better after all for the boys to reside in England and see little or nothing of their father."
Harman L.J. in his separate judgment held thus:
".......But if he chose to take the course which the judge here took in the interests of the children , as he thought, of sending them back to the United States with no more inquiry into the matter than to ensure, so far as he could, that there was no danger to their moral or physical health in taking that course, I am of opinion that he was amply justified, and that that was the right way in which to approach the issue.
These children had been the subject of an order (it is true made by consent) made in the courts of their own country in December, 1964. It was only three months later that the mother flouted that order, deceived her own advisers and deceived the court , and brought the children here with the object of taking them right out of their father's life and depriving him altogether of their society. The interval is so short that it seems to me that the court inevitably was bound to view the matter through those spectacles; that is to say, that the order having been made so shortly before, and there being no difference in the circumstances in the three months which had elapsed , there was no justification for the course which the mother had taken, and that she was not entitled to seek to bolster her own wrong by seeking the assistance of this court in perpetuating that position, and seeking to change the situation to the father's disadvantage."

14. In re. L (minors), (1974) 1 All ER 913 the Court of Appeal was concerned with the custody of the foreign children who were removed from foreign jurisdiction by one parent. That was a case where a German national domiciled and resident in Germany married an English woman. Their matrimonial home was Germany and the two children were born out of the wedlock and brought up in Germany. The lady became unhappy in her married life and in August, 1972, she brought her children to England with an intention of permanently establishing herself and the children in England. She obtained residential employment in the school in England and the children were accommodated at the school. The children not having returned to Germany, the father came to England to find them. On October 25, 1972, the mother issued an originating summons making them wards of court. The trial judge found that the children should be brought up by their mother and treating the case as a `kidnapping' class of case, approached the matter by observing that in such a case where the children were foreign children, who had moved in a foreign home, their life should continue in what were their natural surroundings, unless it appeared to the court that it would be harmful to the children if they were returned. He concluded that in view of the arrangements which their father could make for them, the children would not be harmed by being returned. He, accordingly, ordered that they be returned to Germany and that they remain in their father's custody until further order. The mother appealed, contending that in every case the welfare of the child was the first and paramount consideration and that the welfare of the children would be best served by staying with their mother in England. Buckley, LJ in his detailed consideration of the matter, wherein he referred to the aforenoticed decisions and few other decisions as well, held as follows :
".......Where the court has embarked on a full-scale investigation of that facts, the applicable principles, in my view, do not differ from those which apply to any other wardship case. The action of one party in kidnapping the child is doubtless one of the circumstances to be taken into account, any may be a circumstance of great weight; the weight to be attributed to it must depend on the circumstances of the particular case. The court may conclude that notwithstanding the conduct of the `kidnapper' the child should remain in his or her care (McKee v. McKee, Re E (an infant) and Re. T.A. (infants), where the order was merely interim); or it may conclude that the child should be returned to his or her native country or the jurisdiction from which he or she has been removed. Where a court makes a summary order for the return of a child to a foreign country without investigating the merits, the same principles, in my judgment apply, but the decision must be justified on somewhat different grounds.
..............................................................................
...........The judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country than that he should spend in this country the period which must necessarily elapse before all the evidence can be assembled for adjudication here. Anyone who has had experience of the exercise of this delicate jurisdiction knows what complications can result from a child developing roots in new soil, and what conflicts this can occasion in the child's own life. Such roots can grow rapidly. An order that the child should be returned forthwith to the country from which he has been removed in the expectation that any dispute about his custody will be satisfactorily resolved in the courts of that country may well be regarded as being in the best interests of the child......"

15. In re. L. (minors) (1974) 1 All ER 913, the Court of Appeal has made a distinction between cases, where the court considers the facts and fully investigates the merits of a dispute, in a wardship matter in which the welfare of the child concerned is not the only consideration but is the first and paramount consideration, and cases where the court do not embark on a full-scale investigation of the facts and make a summary order for the return of a child to a foreign country without investigating the merits. In this regard, Buckley, L.J. noticed what was indicated by the Privy Council in McKee v. McKee {1951} A.C. 352 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 interest of the child.

16. This Court in Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and Another (1984) 3 SCC 698 was concerned with the custody of a child-- British citizen by birth--to the parents of Indian citizens, who after their marriage settled in England. The child was removed by the husband from the house when the wife was in the factory where she was working and brought him to India. The wife obtained an order under Section 41(English) Supreme Court Act, 1981 whereby the husband was directed to handover the custody of the boy to her. The said order was later on confirmed by the High Court in England. The wife then came to India and filed a writ petition under Article 226 in the High Court praying for production and custody of the child. The High Court dismissed her writ petition against which the wife appealed before this Court. Y.V. Chandrachud, C.J. (as he then was) speaking for the Court held thus :
"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 forum-shopping. 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 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."

17. In Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Another (1987) 1 SCC 42, this Court held that it was 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. In para 9 of the report, this Court considered the decision of the Court of Appeal in re H.5 and approved the same in the following words:
"9. In Re H. (infants) [(1966) 1 All ER 886] the Court of Appeal in England had occasion to consider a somewhat similar question. That case concerned the abduction to England of two minor boys who were American citizens. The father was a natural-born American citizen and the mother, though of Scottish origin, had been resident for 20 years in the United States of America. They were divorced in 1953 by a decree in Mexico, which embodied provisions entrusting the custody of the two boys to the mother with liberal access to the father. By an amendment made in that order in December 1964, a provision was incorporated that the boys should reside at all times in the State of New York and should at all times be under the control and jurisdiction of the State of New York. In March 1965, the mother removed the boys to England, without having obtained the approval of the New York court, and without having consulted the father; she purchased a house in England with the intention of remaining there permanently and of cutting off all contacts with the father. She ignored an order made in June 1965, by the Supreme Court of New York State to return the boys there. On a motion on notice given by the father in the Chancery Division of the Court in England, the trial Judge Cross, J. directed that since the children were American children and the American court was the proper court to decide the issue of custody, and as it was the duty of courts in all countries to see that a parent doing wrong by removing children out of their country did not gain any advantage by his or her wrongdoing, the court without going into the merits of the question as to where and with whom the children should live, would order that the children should go back to America. In the appeal filed against the said judgment in the Court of Appeal, Willmer, L.J. while dismissing the appeal extracted with approval the following passage from the judgment of Cross, J. [(1965) 3 All ER at p. 912. (Ed. : Source of the second quoted para could not be traced.)]:
"The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.
The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a Judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child."
10. With respect we are in complete agreement with the aforesaid enunciation of the principles of law to be applied by the courts in situations such as this."

18. In the case of Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112, this Court was again concerned with the matter relating to removal of a child from one country to another contrary to custody order of the court from where the child was removed. This court considered English decisions, inter alia, McKee v. McKee {1951} A.C. 352 and H. (infants), re. (1966) 1 W.L.R. 381 = (1966) 1 All.E.R. 886 and also noticed the decision of this Court in Mrs. Elizabeth Dinshaw (1987) 1 SCC 42 and observed as follows :
"28. The leading case in this behalf is the one rendered by the Privy Council in 1951, in McKee v. McKee [(1951) AC 352]. In that case, the parties, who were American citizens, were married in USA in 1933 and lived there till December 1946. But they had separated in December 1940. On 17-12-1941, a decree of divorce was passed in USA and custody of the child was given to the father and later varied in favour of the mother. At that stage, the father took away the child to Canada. In habeas corpus proceedings by the mother, though initially the decisions of lower courts went against her, the Supreme Court of Canada gave her custody but the said Court held that the father could not have the question of custody retried in Canada once the question was adjudicated in favour of the mother in the USA earlier. On appeal to the Privy Council, Lord Simonds held that in proceedings relating to custody before the Canadian Court, the welfare and happiness of the infant was of paramount consideration and the order of a foreign court in USA as to his custody can be given due weight in the circumstances of the case, but such an order of a foreign court was only one of the facts which must be taken into consideration. It was further held that it was the duty of the Canadian Court to form an independent judgment on the merits of the matter in regard to the welfare of the child. The order of the foreign court in US would yield to the welfare of the child. "Comity of courts demanded not its enforcement, but its grave consideration". This case arising from Canada which lays down the law for Canada and U.K. has been consistently followed in latter cases. This view was reiterated by the House of Lords in J v. C (1970 AC 668). This is the law also in USA (see 24 American Jurisprudence, para 1001) and Australia. (See Khamis v. Khamis [(1978) 4 Fam LR 410 (Full Court) (Aus)].
29. However, there is an apparent contradiction between the above view and the one expressed in H. (infants), Re[(1966) 1 All ER 886] and in E. (an infant), Re [(1967) 1 All ER 881] to the effect that the court in the country to which the child is removed will send back the child to the country from which the child has been removed. This apparent conflict was explained and resolved by the Court of Appeal in 1974 in L. (minors) (wardship : jurisdiction), Re [(1974) 1 All ER 913, CA] and in R. (minors) (wardship : jurisdiction), Re [(1981) 2 FLR 416 (CA)]. It was held by the Court of Appeal in L., Re [(1974) 1 All ER 913, CA] that the view in McKee v. McKee [1951 A.C. 352 : (1951) All ER 942] is still the correct view and that the limited question which arose in the latter decisions was whether the court in the country to which the child was removed could conduct (a) a summary inquiry or (b) an elaborate inquiry on the question of custody. In the case of (a) a summary inquiry, the court would return custody to the country from which the child was removed unless such return could be shown to be harmful to the child. In the case of (b) an elaborate inquiry, the court could go into the merits as to where the permanent welfare lay and ignore the order of the foreign court or treat the fact of removal of the child from another country as only one of the circumstances. The crucial question as to whether the Court (in the country to which the child is removed) would exercise the summary or elaborate procedure is to be determined according to the child's welfare. The summary jurisdiction to return the child is invoked, for example, if the child had been removed from its native land and removed to another country where, maybe, 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 is exercised only if the court to which the child has been removed is moved promptly and quickly, for in that event, the Judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country on the expectation that an early decision in the native country could be in the interests of the child before the child could develop roots in the country to which he had been removed. Alternatively, the said court might think of conducting an elaborate inquiry on merits and have regard to the other facts of the case and the time that has lapsed after the removal of the child and consider if it would be in the interests of the child not to have it returned to the country from which it had been removed. In that event, the unauthorised removal of the child from the native country would not come in the way of the court in the country to which the child has been removed, to ignore the removal and independently consider whether the sending back of the child to its native country would be in the paramount interests of the child. (See Rayden & Jackson, 15th Edn., 1988, pp. 1477-79; Bromley, Family law, 7th Edn., 1987.) In R. (minors) (wardship : jurisdiction), Re [(1981) 2 FLR 416 (CA)] it has been firmly held that the concept of forum conveniens has no place in wardship jurisdiction.
30. We may here state that this Court in Elizabeth Dinshaw v. Arvand M. Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Crl.) 13] while dealing with a child removed by the father from USA contrary to the custody orders of the US Court directed that the child be sent back to USA to the mother not only because of the principle of comity but also because, on facts, -- which were independently considered -- it was in the interests of the child to be sent back to the native State. There the removal of the child by the father and the mother's application in India were within six months. In that context, this Court referred to H. (infants), Re which case, as pointed out by us above has been explained in L. Re as a case where the Court thought it fit to exercise its summary jurisdiction in the interests of the child. Be that as it may, the general principles laid down in McKee v. McKee and J v. C and the distinction between summary and elaborate inquiries as stated in L. (infants), Re are today well settled in UK, Canada, Australia and the USA. The same principles apply in our country. Therefore nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984 -- even assuming that the earlier orders passed in India do not operate as constructive res judicata."
However, in view of the fact that the child had lived with his mother in India for nearly twelve years, this Court held that it would not exercise a summary jurisdiction to return the child to United States of America on the ground that its removal from USA in 1984 was contrary to orders of U.S. Courts. It was also held that whenever a question arises before a court pertaining to the custody of a minor child, matter is to be decided not on considerations of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest of the minor.

19. In the case of Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14, this Court was seized with a matter where the mother had removed the children from U.S.A. despite the order of the American Court. It was held :
"6. Therefore, it will not be proper to be guided entirely by the fact that the appellant Sarita had removed the children from U.S.A. despite the order of the Court of that country. So also, in view of the facts and circumstances of the case, the decree passed by the American Court though a relevant factor, cannot override the consideration of welfare of the minor children. We have already stated earlier that in U.S.A. respondent Sushil is staying along with his mother aged about 80 years. There is no one else in the family. The respondent appears to be in the habit of taking excessive alcohol. Though it is true that both the children have American citizenship and there is a possibility that in U.S.A they may be able to get better education, it is doubtful if the respondent will be in a position to take proper care of the children when they are so young. Out of them, one is a female child. She is aged about 5 years. Ordinarily, a female child should be allowed to remain with the mother so that she can be properly looked after. It is also not desirable that two children are separated from each other. If a female child has to stay with the mother, it will be in the interest of both the children that they both stay with the mother. Here in India also proper care of the children is taken and they are at present studying in good schools. We have not found the appellant wanting in taking proper care of the children. Both the children have a desire to stay with the mother. At the same time it must be said that the son, who is elder then the daughter, has good feelings for his father also. Considering all the aspects relating to the welfare of the children, we are of the opinion that in spite of the order passed by the Court in U.S.A. it was not proper for the High Court to have allowed the habeas corpus writ petition and directed the appellant to hand over custody of the children to the respondent and permit him to take them away to U.S.A. What would be in the interest of the children requires a full and thorough inquiry and, therefore, the High Court should have directed the respondent to initiate appropriate proceedings in which such an inquiry can be held. Still there is some possibility of the mother returning to U.S.A. in the interest of the children. Therefore, we do not desire to say anything more regarding entitlement of the custody of the children. The chances of the appellant returning to U.S.A. with the children would depend upon the joint efforts of the appellant and the respondent to get the arrest warrant cancelled by explaining to the Court in U.S.A. the circumstances under which she had left U.S.A. with the children without taking permission of the Court. There is a possibility that both of them may thereafter be able to approach the Court which passed the decree to suitably modify the order with respect to the custody of the children and visitation rights."

20. While dealing with a case of custody of a child removed by a parent from one country to another in contravention to the orders of the court where the parties had set up their matrimonial home, the court in the country to which 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 a parent to return custody of the child to the country from which the child was removed and all aspects relating to 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 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. 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 interest of the child. The indication given in McKee v. McKee {1951} A.C. 352 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 interest of the child has been explained in re. L (minors) (1974) 1 All ER 913 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 re. H (1966) 1 W.L.R. 381 = (1966) 1 All.E.R. 886 has been approved by this Court in Elizabeth Dinshaw (1987) 1 SCC 42.

21. Do the facts and circumstances of the present case warrant an elaborate enquiry into the question of custody of minor Adithya and should the parties be relegated to the said procedure before appropriate forum in this country in this regard? In our judgment, this is not required. Admittedly, Adithya is an American citizen, born and brought up in United States of America. He has spent his initial years there. The natural habitat of Adithya is in United States of America. As a matter of fact, keeping in view the welfare and happiness of the child and in his best interest, the parties have obtained series of consent orders concerning his custody/parenting rights, maintenance etc. from the competent courts of jurisdiction in America. Initially, on April 18, 2005, a consent order governing the issues of custody and guardianship of minor Adithya was passed by the New York State Supreme Court whereunder the court granted joint custody of the child to the petitioner and respondent no. 6 and it was stipulated in the order to keep the other party informed about the whereabouts of the child. In a separation agreement entered into between the parties on July 28, 2005, the consent order dated April 18, 2005 regarding custody of minor son Adithya continued. In September 8, 2005 order whereby the marriage between the petitioner and respondent no. 6 was dissolved by the New York State Supreme Court, again the child custody order dated April 18, 2005 was incorporated. Then the petitioner and respondent no. 6 agreed for modification of the custody order and, accordingly, the Family Court of the State of New York on June 18, 2007 ordered that the parties shall share joint legal and physical custody of the minor Adithya and, in this regard, a comprehensive arrangement in respect of the custody of the child has been made. The fact that all orders concerning the custody of the minor child Adithya have been passed by American courts by consent of the parties shows that the objections raised by respondent no. 6 in counter affidavit about deprivation of basic rights of the child by the petitioner in the past; failure of petitioner to give medication to the child; denial of education to the minor child; deprivation of stable environment to the minor child; and child abuse are hollow and without any substance. The objection raised by the respondent no. 6 in the counter affidavit that the American courts which passed the order/decree had no jurisdiction and being inconsistent to Indian laws cannot be executed in India also prima facie does not seem to have any merit since despite the fact that the respondent no. 6 has been staying in India for more than two years, she has not pursued any legal proceeding for the sole custody of the minor Adithya or for declaration that the orders passed by the American courts concerning the custody of minor child Adithya are null and void and without jurisdiction. Rather it transpires from the counter affidavit that initially respondent no. 6 initiated the proceedings under Guardianship and Wards Act but later on withdrew the same. The facts and circumstances noticed above leave no manner of doubt that merely because the child has been brought to India by respondent no. 6, the custody issue concerning minor child Adithya does not deserve to be gone into by the courts in India and it would be in accord with principles of comity as well as on facts to return the child back to the United States of America from where he has been removed and enable the parties to establish the case before the courts in the native State of the child, i.e. United States of America for modification of the existing custody orders. There is nothing on record which may even remotely suggest that it would be harmful for the child to be returned to his native country.

22. It is true that child Adithya has been in India for almost two years since he was removed by the mother--respondent no. 6 --contrary to the custody orders of the U.S. court passed by consent of the parties. It is also true that one of the factors to be kept in mind in exercise of summary jurisdiction in the interest of child is that application for custody/return of the child is made promptly and quickly after the child has been removed. This is so because any delay may result in child developing roots in the country to which he has been removed. From the counter affidavit that has been filed by respondent no. 6, it is apparent that in last two years child Adithya did not have education at one place. He has moved from one school to another. He was admitted in school at Dehradun by respondent no. 6 but then removed within few months. In the month of June, 2009, the child has been admitted in some school at Chennai. As a matter of fact, the minor child Adithya and respondent no. 6 could not be traced and their whereabouts could not be found for more than two years since the notice was issued by this Court. The respondent no. 6 and the child has been moving from one State to another. The parents of respondent no. 6 have filed an affidavit before this Court denying any knowledge or awareness of the whereabouts of respondent no. 6 and minor child Adithya ever since they left in September, 2007. In these circumstances, there has been no occasion for the child developing roots in this country. Moreover, the present habeas corpus petition has been filed by the petitioner promptly and without any delay, but since the respondent no. 6 has been moving from one State to another and her whereabouts were not known, the notice could not be served and child could not be produced for more than two years.

23. In a case such as the present one, we are satisfied that return of minor Adithya to United States of America, for the time being, from where he has been removed and brought here would be in the best interest of the child and also such order is justified in view of the assurances given by the petitioner that he would bear all the traveling expenses and make living arrangements for respondent no. 6 in the United Sates of America till the necessary orders are passed by the competent court; that the petitioner would comply with the custody/parenting rights as per consent order dated June 18, 2007 till such time as the competent court in United States of America takes a further decision; that the petitioner will request that the warrants against respondent no. 6 be dropped; that the petitioner will not file or pursue any criminal charges for violation by respondent no. 6 of the consent order in the United States of America and that if any application is filed by respondent no. 6 in the competent court in United States of America, the petitioner shall cooperate in expeditious hearing of such application. The petitioner has also stated that he has obtained confirmation from Martha Hunt Elementary School, Murphy, Texas, 75094, that minor son Adithya will be admitted to school forthwith.

24. The learned Senior Counsel for respondent no. 6 sought to raise an objection regarding the maintainability of habeas corpus petition under Article 32 of the Constitution before this Court but we are not persuaded to accept the same. Suffice it to say that in the peculiar facts and circumstances of the case which have already been noticed above and the order that we intend to pass, invocation of jurisdiction of this Court under Article 32 cannot be said to be inappropriate.

25. We record our appreciation for the work done by the concerned officers/officials of CBI in tracing the minor child Adithya and producing him in less than two months of the order passed by this Court, although, the Police Officers and Officials of different States failed in tracing the child Adithya and respondent no. 6 for more than two years. But for the earnest efforts on the part of the CBI authorities, it would not have been possible for this Court to hear and decide this habeas corpus petition involving the sensitive issue concerning a child of seven years who is a foreign national.

26. In the result and for the reasons stated, we pass the following order :
(i) The respondent no. 6 shall act as per the consent order dated June 18, 2007 passed by the Family Court of the State of New York till such time any further order is passed on the petition that may be moved by the parties henceforth and, accordingly, she will take the child Adithya of her own to the United States of America within fifteen days from today and report to that court.
(ii) The petitioner shall bear all the traveling expenses of the respondent no. 6 and minor child Adithya and make arrangements for the residence of respondent no. 6 in the United States of America till further orders are passed by the competent court.
(iii) The petitioner shall request the authorities that the warrants against respondent no. 6 be dropped. He shall not file or pursue any criminal charges for violation by respondent no. 6 of the consent order in the United States of America.
(iv) The respondent no. 6 shall furnish her address and contact number in India to the CBI authorities and also inform them in advance the date and flight details of her departure along with child Adithya for United States of America.
(v) In the event of respondent no. 6 not taking the child Adithya of her own to United States of America within fifteen days from today, child Adithya with his passport shall be restored to the custody of the petitioner to be taken to United States of America. The child will be a ward of the concerned court that passed the consent order dated June 18, 2007. It will be open to respondent no. 6 to move that court for a review of the custody of the child, if so advised.
(vi) The parties shall bear their own costs.