Child Custody and Jurisdiction

IN THE HIGH COURT OF DELHI AT NEW DELHI

CM (M) No.428 of 2005

Date of decision: 01.06.2006

MR. PAUL MOHINDER GAHUN …PETITIONER
Through: Mr. Sanjay Jain, Advocate.
VERSUS
MRS. SELINA GAHUN …RESPONDENT

Through: Ms. Malvika Rajkotia, Advocate.

CORAM:HON’BLE MR. JUSTICE SANJAY KISHAN KAUL

1.Whether the Reporters of local papers may be allowed to see the judgment? Yes
2.To be referred to Reporter or not? Yes
3.Whether the judgment should be reported in the Digest? Yes

SANJAY KISHAN KAUL, J. (Oral)CM (M) No.428/2005

1.Admit.

2.At the request of the learned counsel for the parties, the petition is taken up for final disposal.

3.The tussle for the custody of the minor child brought by the respondent to India from Canada has given rise to the present petition.

4.The petitioner is the father of Anika, a girl child born on 5.11.1998 in Canada out of the wedlock between the parties. The petitioner, the respondent and the minor girl are all Canadian citizens.

5.Prior to the dispute, the petitioner and the respondent were married for 12 years since 1991 and were residing in Canada. During this period of time both the petitioner and the respondent were gainfully employed.

6.The respondent along with Anika came to India on 2.12.2003 for a planned visit
and were to stay in India till 2.2.2004 Both of them came to India on return
tickets of the said dates. The return was postponed and ultimately in the
latter part of February 2004, the respondent informed that she had no intention
to return back to Canada. The petitioner immediately contacted the respondent
through E-mail expressing concerns about Anika’s future and the need of the
respondent to return back to Canada. However, the respondent wanted a divorce
and the custody of Anika. The petitioner filed proceedings in Canada. The
competent court in Canada on 8.4.2004 passed an interim order in favour of the
petitioner for custody of the child.

7.The respondent had, in the mean time, filed a petition on 25.3.2004 before the
designated court under the Guardians and Wards Act, 1890 (hereinafter referred
to as the said Act). The petitioner moved the Delhi High Court by way of a
Habeas Corpus petition bearing No.842/2004, which was disposed off by the
Division Bench on 3.11.2004, declining to pass an order as the custody of the
mother was not illegal and it was for the Guardianship Court to consider the
matter expeditiously. The Division Bench also observed that the Guardianship
Court will remain uninfluenced by the observations made by the Division Bench.

8.The petitioner filed an application raising preliminary objections to the
jurisdiction of the Court and the said application was dismissed vide order
dated 14.2.2005 by the Guardian Judge. The petitioner aggrieved by the same has
filed the present petition.

9.In order to appreciate the legal plea it is necessary to reproduce Section 9
of the said Act, which reads as under:9. Court having jurisdiction to entertain application. – (1) If the
application is with respect to the guardianship of the person of the minor, it
shall be made to the District Court having jurisdiction in the place where the
minor ordinarily resides.
(2) If the application is with respect to the guardianship of the
property of the minor, it may be made either to the District Court having
jurisdiction in the place where the minor ordinarily resides or to a District
Court having jurisdiction in a place where he has property.
(3) If an application with respect to the guardianship of the property of
the minor is made to a District Court other than that having jurisdiction in the
place where the minor ordinarily resides, the Court may return the application
if in its opinion the application would be disposed of more justly or
conveniently by any other District Court having jurisdiction.?

10.The controversy which thus arise in the present case is whether the minor
Anika can be said to be ?ordinarily residing? within the jurisdiction of the
courts at Delhi.

11.Learned counsel for the petitioner submitted that for almost five years from
the birth, Anika was residing in Canada. It is only in December 2003 that the
respondent brought the child to India and in March 2004 filed the petition
before the Guardianship Court. It was, thus, submitted that the child could not
be one, who ?ordinarily resides? within the territorial jurisdiction of the
courts at Delhi. Learned counsel submitted that the respondent indulged in
subterfuge to bring the child to India, so as to take away the child from the
jurisdiction of the Canadian Courts, which would have jurisdiction in the matter.

12.Learned counsel for the petitioner has also referred to certain E-mails of
the respondent. The E-mail dated 27.1.2004 has been address by the respondent
to her friend in Canada about the engagement of a lawyer to defend her case and
informing about the fact that she had not disclosed to anyone about her decision
of returning back to India permanently. Another E-mail referred to by the
learned counsel for the petitioner of the respondent is dated 20.2.2004 The Email
states that the respondent would have loved to stay in Canada but for the
fact that her parents were living in Delhi, she decided to come back to India.
She also loved the school Anika went to and there was a nice circle of friends.
The respondent has made some imputations that the petitioner did not give her
enough love, support and respect. The E-mail states by reference to the
petitioner ?he loves her and there is no doubt about it?. The E-mail, however,
goes on to record that the love was not enough to teach and nurture the child
and a lot of other actions were required.

13.Learned counsel for the petitioner also points out by reference to an E-mail
of the respondent produced in Court which refers to the fact that the petitioner
could keep in touch with Anika when she goes back to the boarding school but it
can only be once or twice a week. The last E-mail has been referred to by the
learned counsel for the petitioner to state that the child was not staying with
the respondent but is staying in a boarding school at an age of less than eight
(8) years.

14.Learned counsel for the petitioner emphasised that the impugned order was
erroneous in law since the Guardian Judge fell into an error in coming to the
conclusion that she had jurisdiction to entertain the petition as the respondent
and the child had come to India with the permission of the petitioner. The
removal of the child from the custody of the petitioner was thus held not to be
unauthorised or illegal and thus it was not a case of stealthily removing the
child. The Guardian Judge also referred to the Hague Convention of 1980 to come
to the conclusion that the interest of the child is paramount and unless the
child is wrongfully removed to the jurisdiction of any other country resulting
in physical or psychological harm it is not necessary that the child should be
restored to the jurisdiction of the original country.

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15.The term ?ordinarily resides? as used in Section 9 of the said Act has been
held to be capable of several interpretations and since Anika was under the
continuous care and custody of the respondent since the birth initially in
Canada and then in India, the Courts in India would have jurisdiction.

16.I have considered the submissions advanced by learned counsel for the parties
and the judgements cited by them at the Bar. No doubt the interest of the child
is a paramount factor but the question would remain as to which court has
jurisdiction in the matter. I am unable to agree with the submissions advanced
by learned counsel for the respondent and the conclusion arrived at in terms of
the impugned order and thus proceeded to consider the legal position and reasons
for the same hereinafter.

17.The first premise on which the Guardian Judge has acted that the child was
not stealthily removed from the custody of the petitioner is itself erroneous.
It was never disclosed to the petitioner that the respondent was permanently
coming back to India with the child. The material placed on record leaves no
manner of doubt that the respondent came back to India with the child with
return tickets on a short visit. Once the respondent came to India she
disclosed her intentions which may have been in her mind even earlier. Thus, it
is certainly an attempt by the respondent to remove the child from the
jurisdiction of the Canadian Courts.

18.It must be kept in mind that the facts of each case are extremely important.
The present one is not a case where a marriage has taken place in India and a
lady goes to a foreign country without knowing what she is going to face. Prior
to the incident, the parties had been married for 12 years. Both the parties
were gainfully employed. The child was born seven years after the marriage and
lived in Canada for five years. The initial upbringing of the child has been in
Canada at the formative years till the child was almost of five (5) years. The
child has been in India after that. The important factor is that the child is
not even staying with the respondent but in a boarding school. It is not as if
the child is staying in the personal care of the mother, which seems to be a
factor which has weighed with the Guardian Court.

19.The legal position is expounded in a number of judgements. Learned counsel
for the petitioner referred to the judgement in Konuparthi Venkateswarlu and
Ors. Vs. Ramavarapu Viroja Nanda and Ors. AIR 1989 Orissa 151. It has been held
that the expression ?where the minor ordinarily resides? used in sub-Section 1
of Section 9 of the said Act has to be construed in a manner where the residence
by compulsion at a place however long cannot be treated as the place of ordinary
residence. Similarly the word ?ordinary residence? are not identical and cannot
have the same meaning as ?residence at the time of the application?. The
purpose for using the expression ?where the minor ordinarily resides? is
probably to avoid the mischief that a minor may be stealthily removed to a
distant place and even if he is forcibly kept there, the application for the
minor’s custody could be filed within the jurisdiction of the District Court
from where he had been removed or in other words, the place where the minor
would have continued to remain but for his removal. In my considered view, the
said judgement succinctly sets out the object of the wording of the said
provision by the legislature. It is such cases of mischief, which are sought to
be avoided and this is exactly what has happened in the present case.

20.Learned counsel for the petitioner referred to the judgement of the Supreme
Court in Smt. Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and Anr. AIR 1984 SC
1224. The case related to the custody of a minor son where the spouses had made
their home in England. The English Courts granted custody in favour of the
mother and the father removed the child to India. It was held that the
jurisdiction of English Courts were not ousted and for the welfare of the child
handed over the custody of the child to the mother. It was observed in para 10
as under:10. We may add that the spouses had set up their matrimonial home in
England where the wife was working as a clerk and the husband as a bus driver.
The boy is a British citizen, having been born in England, and he holds a
British passport. It cannot be controverted that, in these circumstances, the
English Court had jurisdiction to decide the question of his custody. The
modern theory of Conflict of Laws recognises and, in any event, prefers the
jurisdiction of the State which has the most intimate contact with the issues
arising in the case. Jurisdiction is not attracted by the operation or creation
of fortuitous circumstances 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 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 Vs. State of Washington, (1945) 90 L
Ed 95, 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.?

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21.If applied to the facts of the present case one would find similarity. All
the parties involved in the present case including the minor are citizens of
Canada. The child had been initially for five years staying in Canada before she
was stealthily removed to India on the pretext of only a visit. The Supreme
Court thus held that the assumption of jurisdiction by another State would
result in encouraging forum shopping. The matrimonial home in the present case
is also in Canada up to 2003.

22.Learned counsel for the petitioner has emphasised on the observations made by
the Supreme Court in Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw and Anr.
(1987) SCC 42. The facts of the case were that the custody of a minor after
divorce in USA was granted to the mother with visitation rights to the father of
the child. The father secretly brought the child to India against the express
orders of the American Court. It was held that the mother was entitled to the
child’s custody with liberty to take the child to the USA and the father may
instead of tendering an unconditional apology before the Supreme Court of India
tender an apology before the American Court for restoration of visitation
rights. The Supreme Court referred to the judgement in Re H. (infants) (1966) 1
All ER 886 where Courts made the following observations:
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 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 judgement in the Court of Appeal, Willmer L.J. while dismissing
the appeal extracted with approval the following passage from the judgement of
Cross, J. [(1965) 3 All ER at p. 912.]:
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.?

23.After referring to the aforesaid observations, the Supreme Court observed as
under: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.?

24.The legal position which thus emerges is that the Court frowned upon any
unauthorised removal of the child from one country to another. This has become
a frequent occurrence and the courts must endeavour to ensure that the wrong
doer does not gain advantage by his wrong doing. This is, of course, subject to
the condition that there should not be any serious harm to the child. In the
present case, unlike some of the cases referred to, it is the mother who decided
to take the child outside the custody of the Court where the child ?ordinarily
resides?. That itself would not make a difference. The love and affection of
the petitioner for the child is not even doubted by the respondent as is
apparent by the E-mails. It is the own personal conflict of the respondent with
the petitioner. It is not the function of this Court in the present proceedings
to decide about giving the custody of the child to the father or to the mother.
That is the factor to be considered by the court of competent jurisdiction. The
only factor to be examined is as to which court is authorised and best suited to
determine the controversy. In my considered view, it is the Courts in Canada
which would have jurisdiction in the matter.

25.Learned counsel for the respondent referred to the judgement in Mrs.
Elizabeth Dinshaw Vs. Arvand M. Dinshaw and Anr. case (Supra) and drew the
attention of this Court to para 8 to contend that the predominant criterion is
what would best serve the interest and welfare of the minor. The factor taken
note by the Supreme Court was that excepting for the last few months that had
elapsed since the child was brought to India by the process of illegal abduction
by the father, he had spent the rest of his life in the USA and was doing well
in school. The child was found to be too tender in age to form any independent
opinion. In the present case, learned counsel for the respondent contends that
the child is already well settled for the last two years in India.

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26.I am afraid this cannot be a submission to be accepted where the child has
been stealthily removed to India. The child was happy during the first five
years of residence in Canada. No doubt a child is extremely adaptable at this
age and it is not as if the child cannot adjust in India to the Indian
circumstances. That is, however, not the only factor. Apart from any other
reason one cannot lose sight of the fact that the child is in a boarding school
and not being personally looked after by the respondent. This is not to cast a
doubt on the intention of the respondent but to bring forth that a child adjusts
to any situation and the fact to be considered by this Court is as to which
Court would be appropriate to determine the interest of the child.

27.Learned counsel for the respondent also referred to the judgement in Harmeeta
Singh Vs. Rajat Taneja 102 (2003) DLT 822. That was a case relating to the
question of conflict of law and as to which court should decide the dispute
pertaining the divorce. The parties were married in India and it was thus held
that the Courts in India would undoubtedly have jurisdiction. It was held in
the said case that the wife was not in a position to represent herself before
the American Court inter alia because of economic constraints. This judgement
would have no application to the present case. The present case is not one, as
noticed above, where the respondent is under any handicap. The respondent
resided for 12 years in Canada, was working there and being gainfully employed
till she decided one fine day, due to some disputes with the petitioner or at
least on account of absence of her parents in Canada, to come to Delhi.

28.Learned counsel also referred to the judgement of the Supreme Court in Sarita
Sharma Vs. Sushil Sharma (2000) 3 SCC 14. The proceedings for divorce were
pending and the American Courts put the child in the care of the husband. The
wife exercising her visitation rights picked up the children from the residence
and brought them into India. It was held that the appellant conduct is a
relevant factor but cannot override various aspects relating to the welfare of
the children. It was observed that the child being five years of age and a
female child should ordinarily reside with the mother.

29.As noticed above the present case is one of the issue of jurisdiction and it
is open to the respondent to approach the competent courts in Canada, which is
what she initially intended to do as disclosed in her E-mail to claim her rights
for the custody of the child so that the welfare of the child certainly is not
adversely affected by such a process.

30.In Dhanwanti Joshi Vs. Madhav Unde (1998) 1 SCC 112, the child had been in
the mother’s custody for more than 12 years and it was held that the courts in
India have to take an independent decision on the merits of the case. Learned
counsel also sought to rely upon the judgement of the Supreme Court in Y.
Narasimha Rao and Ors. Vs. Y. Venkata Lakshmi and Anr. (1991) 3 SCC 451 to
contend that the wife’s domicile would not follow that of the husband. However,
in the present case even the respondent was working and gainfully employed in
Canada for 12 years prior to her sudden departure to India. The Supreme Court
did observe that protection is given to women, who are the most vulnerable
section of our society. As explained earlier all these aspects have to be
considered in conspectus of the facts and there are cases where the women is
placed in such a disadvantaged situation that other facts would override. The
facts given above do not permit this Court to come to such a conclusion.

31.The last judgement referred to by the learned counsel for the respondent is
in the case of Smt. Satya Vs. Shri Teja Singh (1975) 1 SCC 120. The said
judgement also deals with the issue of domicile being a jurisdictional fact and
it was held that the respondent was not a bonafide resident of Nevada, much less
being domiciled in Nevada.

32.The parties in the present case were equally well placed and both employed.
It is the normal wear and tear of marriage which has taken a large toll in the
present case. The respondent stealthily removed the child to India without
disclosing her intention that her short trip would actually be a one way ticket.
The child spent five formative years in Canada and the last 2? years in Delhi
due to the petition filed by the respondent within about a month of her decision
to stay back in Delhi. The child at the age of about 8 years is in a boarding
school. In my considered view, the child cannot be said to be one who
?ordinarily resides? in Delhi when the petition was filed nor are the interests
of the child adversely affected if the Guardian Court determine the issue of
custody where the child resided for five years before her removal to Delhi.

33.In view of the aforesaid reasons, I am of the considered view that the impugned order cannot be sustained and the Guardian Court at Delhi would have no jurisdiction to try and decide the petition. The petition filed by the respondent before the Guardian Court is accordingly dismissed. The impugned order is set aside and the present petition is allowed leaving the parties to bear their own costs.

CM No. 3864/2005 IN CM (M) No. 428/2004
34.No further directions are called for in the interim application and the
application stands disposed of.

June 01, 2006 SANJAY KISHAN KAUL, J.

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