Supreme Court of India
PETITIONER:DHANWANTI JOSHI
Vs.
RESPONDENT:MADHAV UNDE
DATE OF JUDGMENT: 04/11/1997
BENCH: Honble Mr.Justice S.B.Majmudar
Honble Mr.Justice M.Jagannadha Rao
In-person for the appellant Kailesh Vasdev, Adv. for the Respondent
J U D G M E N T
The following Judgment of the Court was delivered: M. JAGANNADHA RAO, J.
These two appeals are connected and can be disposed of
together C.A.No 5517 of 1997 arises out of order dated
10.6.1997 and 4.7.1997 passed by the High Court in appeal
against M.J.Petition No. 985 of 1985 filed by the appellant
in Civil Court which was transferred to the Family Court.
C.A. No. 5518 of 1997 arises out of orders passed on same
dates by the High Court in Family Court Appeal No. 99 of
1995 (arising out of order dated 1.212.1995 in custody case
No. 9 of 1993 filed by the respondent). The orders dated
10.6.1997 are orders dismissing the matters for default and
orders dated 4.7.1997 are those refusing to restore the
matters and vacating the ad interim order. In the Family
Court Appeal 99 of 1995 while passing orders on 4.7.1997, it
was also stated by the High Court that appellant has no case
on merits.
The facts leading to the appeals are as follows:-
The respondent Mr.Madhav Under married the appellant
(who was then in U.S.A) on 11.6.82 at Omaha, State of
Nebraska in the U.S.A.. On 19.6.1982, a separate marriage
ceremony as per Hindu rituals was performed. It appears
that the respondent had earlier married one Bhagyawanti at
Nagpur on 20.4.1967. The respondent later left for USA and
obtained an exparte divorce order against Bhagyawanti in the
trial court at Oakland in the State of Michigan on
25.10.1997 allegedly by way of misrepresentation. (Later
Bhagyawanti moved that Court for vacation of that order).
The said Bhagyawanti also filed petition No.101/81 in the
District Court, Nagpur and claimed that the decree obtained
by respondent in USA was void and based on misrepresentation
of facts and she claimed for divorce maintenance and the
reliefs. She succeeded in that case and a fresh divorce
decree was passed by the Nagpur Court on 11.6.84 relying
upon Smt. Satya vs. Tej Singh [1975 (1) SCC 120]. That
would mean that the Indian Court held that the US divorce
decree dt. 25.10.1997 was not binding on the said
Bhagyawanti.
The appellant lived with the respondents in USA for 10
months after her marriage on 11.6.1982. On 15.3.1983, a
male child was borne to them, is USA and was named Abhijeet.
Due to certain compelling circumstances, the mother
(appellant) and the child left the respondent on 20.4.83 the
child was 35 days old. Thereafter, the respondent-husband
had no occasion to live with his wife and the child so far.
They have been involved in unfortunate litigations both
Civil and Criminal both in USA and India for the last 14
years. The respondent is continuing to live in USA while
the appellant and her son have been living in India. The
boy is now studying in 8th Standard in a school at Pune.
The respondent-husband filed a divorce case in USA
against the appellant and also sought custody of the child.
Initially on 15.3.1983 the US Courts had given custody of
the child to the mother-appellant. A divorce decree was
passed exparte on 23.9.1983. On 20.2.84 the child reached
India with the appellant s-mother. The respondent then
obtained an order on 11.4.1984 exparte containing directions
as to visitation rights in his favour. Late on, 30.4.84 the
Court passed an order exparte modifying the earlier order
unto one of temporary custody in favour of the husband-
respondent and shifting the temporary care, control or
possession of the child from the appellant to the
respondent, until a final bearing as to be held on all
issues. On 28.4.86, the US Court passed on exparte order
granting permanent custody to the respondent-husband.
In the meanwhile, the appellant proceeded from USA to
Australia and then reached India and joined her son. She
then filed M.J. Petition No. 985 of 1985 in the Civil Court,
Bombay for a declaration that her marriage with respondent
on 11.6.1982 was null and void inasmuch as the respondents
marriage with Bhagyawanti was subsisting on that date. She
claimed maintenance for her and the child and for a
declaration that the divorce decree passed by the US Court
on 23.9.83 was not binding on her and for injunction against
respondent from removing the child from her. That the
divorce decree obtained on 25.10.77 by the respondent
against Bhagyawanti did not bind Bhagyawanti has now been
declared in the fresh divorce decree passed by the Indian
Court on 11.6.84 as stated above:
The respondent came to Bombay and filed Habeas Corpus
petition No. 328 of 1986 in the High Court of Bombay and the
said Writ Petition was dismissed on 15.4.86 and custody was
granted to the appellant by the High court. The Court said
In a elaborate order);
Therefore, taking the totally of
circumstances into consideration,
we find allowed to retain the
custody for the present and at the
stage. The interim Custody of
Abhijeet be handed over to the
mother Dhanwanti forthwith. The
petitioner-father-Madhav will the
right of visiting between 4.000
p.m. and 6 p.m. every day. Subject
to the above, rule is discharged.
(The permanent custody order of UDS Court dated 25.4.86 in
favour of the husband is after this dated. B Social leaves
petition No. 1290 of 1986 filled by respondent was dismissed
on 8.5.1986.
We come to the next stage of proceedings under the
Guardian and wards Act, and eye 13 of the Hindu Minority &
Guardianship Act, 1890) filed by the appellant for permanent
guardianship of the person/property of her son and other
reliefs. The Court appointed her as permanent & Lawful
guardian of the person/property of the child or 20.8.1986.
This was an exparte order in favour of the appellant-wife.
The application filed by respondent for setting aside the
same was dismissed on 23.1.1987 by the trial court. Appeal
No. 1313 of 1987 to the High Court filed by the respondent-
husband was dismissed on 23.11.1987 observing;
We have heard Mr. Ganesh learned
counsel appearing on behalf of the
appellant t length and we find that
there is no merit whatsoever in the
appeal. From what has been stated
hereinabove it is very clear that
the appellant is fighting with the
Respondent for over several years.
The conduct of the appellant
clearly indicates that he is a much
married man and he had entered into
marriage with the Respondent by
suppressing the fact of the first
marriage with a girl at Nagpur.
The earlier judgment of the
Division Bench of this court
clearly indicates that the
appellant had treated the
Respondent with cruelty and the
Respondent was required to leave
the matrimonial house with the
child under great stress and
compulsion. The conduct of the
appellant does not indicate that he
is interested in the welfare of the
child but the anxiety of the
appellant seems to be to seek
custody of the child only a with a
view to avoid payment of
maintenance for the child.
Apart from the merits of the claim,
we must bear in mind that whatever
may be, the disputes between the
parties the Court has to consider
in the proceedings under the
Guardianship Act as to what is in
the interest of the minor child.
The minor child has remained with
the mother for last over four years
and in our judgment it would not be
in interest of the minor to be
snatched away from the mother and
the order of the learned Single
Judge appointing the mother as
guardian could not be faulted
with.
Once again, the respondent filed appeal in this Court
in C.A. No. 1289/90. This was dismissed on 10.10.1990.
This Court, however, while dismissing the appeal, made an
observation:
We make it clear that we have
decided the case only on the
grounds which we have set earlier
and we decline to express ay view
on the legal merits of the decree
or on merits of the disputes
between the parties concerned
except to the extent that there was
no good cause for setting aside the
exparte decree. I the appellant
has any other remedy open in law
against the exparte decree this
judgment will not preclude him from
pursuing such remedy.
Taking advantage of the said observation, the
respondent filed Case No.D9 of 1993 in the Family Court,
Bombay afresh for custody of child. That petition was
clubbed with M.J. Petition No. 985 of 1985 filed earlier by
the appellant in the City Civil Court regarding declaration
that her marriage was void, which was transferred to the
Family Court. The Family Court passed an order dt. 1.12.95
allowing the respondents application D9 of 1993 and
granting him custody of the child to the respondent and
dismissed appellants M.J.Petition No.985 of 1985 filed to
declare her marriage with respondent as null & void.
The appellant preferred appeal to the High Court. Stay
was granted. It appears, during the hearing of the appeal,
the respondent was given custody of the child for 4 days but
on the first day the boy ran away from the respondent and
was traced, and then all the parties met at a police station
and the custody of the boy was given to the respondent for
three days. The boy was later taken by respondent to his
village called Baddlapur in Maharashtra for those three
days. The appellants appeals were listed after vacation in
the first week for 9th June. It is the case of the
appellant that the case was not listed on 9th. it was
listed on 10th June, 1997, and she had no notice and when
the Advocate requested the court for time, the case was not
adjourned but was only passed over till 2.245 p.m. and then
at 2.45 p.m. it was dismissed for non-prosecution. The
application o. 3411 of 1997 to set aside the same was
dismissed on 4.7.97. It was also held i the order dt,
4.7.97 that the appellant-mother had no case on merits for
retaining custody of the child.
Aggrieved by the order dismissing the appeals for
default and the refusal to restore the same, and aggrieved
by the findings given on merits of the application for
custody and aggrieved by the dismissal of the appeal in the
case for declaring the marriage as null & void – without
giving any reasons, – these two Civil appeals have been
preferred by the appellant.
We have heard arguments on the merits of the petition
filed for custody of the child. So far as the appeal
relating to declaration of the marriage as null & void filed
by the appellant is concerned, the appellant stated fairly
that she does not want to pursue the same. Therefore, the
earlier decree of divorce as between her and her husband can
be treated as having become final.
So far as the dismissal of the appellants appeal
(against the orders in respondents application D9 of 1993
for custody) for default on 10.6.97 and the refusal of the
High Court on 4.7.97 to restore the same, we have been taken
through the affidavits and the circumstances of the case and
we are satisfied that the High Court was not justified in
not restoring the appeals and in refusing to give a hearing.
it appears to us that the High Court did not give due
importance to the fact that the case related to custody of a
child who has been living with the appellant for more than
12 years or more and that it involved serious consequences
for the child, whatever be the fault of the appellant. it
was a fit case where the appeal should have been restored,
If the child, on account of his superience in the three days
with his father – during the pendency of the appeal when
temporary custody was given to the respondent was not
willing to accompany the mother to the High Court, prima
facie it appears to us that there was no ground for
initiating contempt proceedings against her for not
producing the child. Be that as it may, the said contempt
proceedings will be disposed of in accordance with law by
the High Court. In any event we direct recall of the
bailable warrants issued against the appellant, if they are
still pending.
Before the hearing of the case, we interviewed the boy
in Chambers and found that he was quite intelligent and was
able to understand the facts and circumstances in which he
was placed. He informed us that he was not inclined to go
with his father to USA and he wants to continue his studies
in India till he completes 10-2 or he finishes his
graduation. He feels that he will then be in a position to
decide whether to go to USA for higher studies. He wants to
continue to be in the custody of his mother. He told us that
his desire is to become a Veterinary doctor.
Parties & counsel on both sides wanted us to dispose of
the custody matter on merits.
The High Court while holding that the appellant had no
case on merits, has given only one reason for granting
custody to the father. it stated that the father.
Who has acquired citizenship in
America is well-placed in is
career. The boy is nearing the age
of 14. The paramount interest of a
boy aged 14 years of age is
definitely his future education and
career. The further education of
the boy whose father is well-placed
in America will be comparatively
superior. The lower Court took
note of this circumstance and
granted custody of the boy to
respondent. Therefore, we do not
find any error in the order passed
by the Court below
It is clear that the Family Court and the High Court have
therefore based their decision on the said sole circumstance
regarding the financial capacity of the father to give
better education to the boy in USA. Learned counsel for the
respondent-husband has contended in addition, that the
appellant had violated Court orders in USA and brought the
child to India and had also not produced the child in the
Bombay High Court and had violated Court directions, and
that by such conduct she was disqualified from having
custody of the child. It was also argued that she was
living in Bombay while the chile, is studying at Pune, and
that she does not have the capacity to educate the child in
USA. The husband led evidence that his brother & brothers
wife are prepared to come to USA to take care of the child
if the child should come to USA.
On the other hand, the appellant has contended that
earlier orders granting custody to her have become final and
that there is no change in the circumstances warranting the
shifting of the custody to the father, that the Child cannot
be uprooted from the environment in which he has grown for
the last more than 12 years, that she has the capacity to
educate the child in USA, that the child is a citizen of USA
and is entitled to go there in his own independent right at
any time, that in US, there is no body to take care of the
child in the husbands household and that the respondents
brother/wife could not be substitutes for the mother, even
if they go to USA . She submitted that the respondent made
efforts taking away the child from her within 35 days of its
birth and she had to leave the house in USA with the child
and the child was sent to India through her mother; she
escaped the detectives employed by the respondent, and
proceeded to India via Australia. Her Sringing the child to
India in those circumstances cannot be a ground for shifting
custody of the child to the respondent. She contended that
the Courts below could not ignore the earlier orders of the
High Court in the Habeas Corous case or the orders in the
proceedings under the Guardian & Wards Act, 1890. The
Supreme Court had also rejected the respondents appeal in
both cases. In the latter case the High Court/supreme Court
had refused to set aside the ex parte orders passed in her
favour and against the respondent. This operated as res
judicata or estoppel. She also contended that when the
child was not willing to come before the Bombay High Court
in view of his unpleasant experience with the father for 3
days when the Bombay Court gave custody to the father, she
could not be found fault with for not bringing the child to
the Court and that fact cannot also be a ground for shifting
custody to the respondent.
On these submissions, the following points arise for
consideration:
(1) Could the Family Court and High Court have ignored the
orders passed in favour of the appellant in the Habeas
Corpus Case on 15.4.86 and the exparte order in the Guardian
& Wards Act case dated 23.11.87 and the orders of refusal of
the High Court or Supreme Court in 1990 to set aside the
latter orders and could the respondent file a fresh case in
the Family Court in 1993 to claim custody, and if so is
whether there is proof of changed circumstances between 1990
and 1993 or 1997 warranting the shifting of custody to the
respondent-father, and whether the capacity of the
respondent to give education to the child in USA could alone
be sufficient ground to shift custody?
(2) Do the fact relating to the appellant bringing away the
child to India in 1984 contrary to an order of the US Court
or not producing the child in the Bombay High Court have any
bearing on the decision o the Courts in India while deciding
about the paramount welfare of the child in 1993 or 1997?
(3) In case the respondent is not entitled to permanent
custody, is he entitled to temporary custody or visitation
rights.
Point 1: From the facts already stated, it is clear that
the appellant has an order in her favour of the High Court
of Bombay dated 15.4.86 giving her the custody of the child
passed while dismissing the writ petition filed by the
respondent seeking a writ of baheas corpus. The appellant
then has also an order in her favour passed again under the
Guardian & Wards Act dated 23.11.1987, though in exparte
proceedings, giving her permanent custody of the child. The
appeals preferred by the respondent against he said order to
the Supreme Court have been dismissed. The order in the
proceedings under the Guardian & Wards Act, 1890 dated
23.11.1987, even though exparte is binding on the respondent
as it concerns the same subject matter and operates as res
judicata (Mulla, CPC, Vol.1, 15th Ed., P. 109) (See also
Sarkar on Evidence 13th Ed. P. 1128 that judgment by default
creates an estoppel – quoting sailendra Narayan vs. State of
Orissa AIR 1956 SC 346).
We re of the view that the High Court, in the present
proceedings, was clearly in error in not even referring to
the earlier orders and their binding nature on the
respondent, in so far as the said orders considered that in
the interests of the paramount welfare of the child, the
custody was to be with the mother, the appellant. In the
present proceedings started start on the premise that the
permanent custody was with the mother. it will be necessary
for the respondent to establish facts subsequent to 1990 and
before 1993 or 1997, which can amount to change in
circumstances requiring custody of the child to be shifted
from the appellant to the respondent.
It is no doubt true that orders relating to custody of
children are by their very nature not final, but are
interlocutory in nature and subject to modification at an
future time upon proof of change of circumstances requiring
change of custody but such change in custody must be proved
to be in the paramount interests of the child [Rosy Jacob
vs. Jacob a. Chakramakkal (1973 (1) SCC 840)]. However, we
may state that in respect of orders as to custody already
passed in favour of the appellant the doctrine of res
judicata applies and the family Court in the present
proceedings cannot re-examine the facts which were formerly
adjudicated between the parties on the issue of custody or
are deemed to have been adjudicated. There must be proof of
substantial change in the circumstances presenting anew case
before the court. It must be established that the previous
arrangement was not conductive to the childs welfare or
that it has produced unsatisfactory results. Ormerod L.J.
pointed out in S vs. W [(1981) 11 Fam.Law 21 (82) {CA)] that
the status quo argument depends
for its strength wholly and
entirely on whether the status quo
is satisfactory or not, the more
satisfactory the status quo, the
stronger the argument for not
interfering. The less satisfactory
the status quo, the less one
requires before deciding to
change.
We shall next consider the point which solely appealed
to the Family Court and the High Court in the present
proceedings namely that the respondent is financially well-
off and can take care of the child better and give him
superior education is USA. Lindley, L.J. in Re. vs. McGrath
(Infants) 1893 (1) Ch. 143 (148) stated that:
….the welfare of the child is
not to be measured by money alone
nor by physical comfort only. The
word welfare must be taken in its
wides sense. The moral and
religious welfare must be
considered as well as its physical
well-being. Nor can the ties of
affection be disregarded.
As to the secondary nature of material considerations,
Hardy Boys, J. of the New Zealand Court said in Walker vs.
Walker & Harrison (See 1981 N.Z.Recent Law 257) (cited by
British Law Commission, working Paper No. 96 Para 6.10)
Welfare is an all-encompassing
word. It includes material
welfare, both in the sense of
adequacy of resources to provide a
pleasant home and a comfortable
standard of living and in the sense
of an adequacy of care to ensure
that good health and due personal
pride are maintained. However,
while material considerations have
their place they are secondary
matters. More important are the
stability and the security, the
loving and understanding care and
guidance, the warm and
compassionate relationships, that
are essential for the full
development of the childs own
character, personality and talents
From the above, it is clear that the High Court in the
case before us was clearly in error in giving sole or more
importance to the superior financial capacity of the husband
as stated by him in his evidence. Assuming that his
financial capacity is superior to that of his wife, that in
out opinion cannot be the sole ground for disturbing the
child from his mothers custody. As of today, the child is
getting good education and is doing well in his studies.
The proposal of an immediate American education which the
father is prepared to finance cannot, in our opinion, be a
sufficient ground for shifting the child to the fathers
custody, ignoring the fact that for the last more than 12
years, the child has been in the mothers custody. Thee is
also, no basis, having regard to the oral evidence adduced
by the parties, for holding that the mother is permanently
residing at Bombay leaving the child at Pune. The
appellants categorical evidence that whenever she had to go
to Bombay from Pune, her mother used to come from Bombay to
pune to take care of the child, leaves no doubt in our mind
that the mother is residing mostly at Pune and goes to
Bombay occasionally for very short periods in connection
with certain official duties in her employment. the
appellant has also reiterated before us that she has been
residing at Pune and she has a flat there. As contended by
her, the child is a citizen of USA by both and he can go to
USA in his own right in future whenever it is so decided.
Further the evidence of the respondent and of his brother
that in the event the child is allowed to go to USA with the
respondent, the respondents brother and the latters wife
have agreed to proceed to USA, leaving their three daughters
in India (of whom o e has been married recently) or
anticipating the migration of their daughters, appears to us
to be too artificial and a make believe affair rather than
real. It appears to us that the effort on the part of the
respondent here is only to impress the Court that the child
will have company of these persons in case the child is
allowed to proceed to USA. This evidence has not appealed
to us.
In the result, therefor, we do not find any substantial
change in the circumstances between 1990 and 1993 or 1997
which can justify the shift over the permanent custody of
the child from the appellant to the respondent.
Point 2: Much of the argument for the appellant was based
upon the fact that the appellant had, during 1984, removed
the child from US to India violating Court orders passed in
that country. It is said she has also not produced the
child before the Bombay High Court. It was argued for the
respondent that this conduct disqualified the appellant from
having custody of the child.
This point can perhaps be rejected on ground of
constructive res judicata because of the earlier order as to
custody in favour of the appellant but a the point has been
argued and is important we shall decide the same as a matter
of law. Such a question has been considered and decided in
various decisions of Courts to which we shall presently
refer.
The leading case in this behalf is the one rendered by
the Privy Council in 1951, in McKee vs. McKee (1951 AC 352).
In that case, the parties, who were American citizens, were
married in USA in 1933 and lived there till Dec, 1946. But
they had separated in Dec. 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 proceeding 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 the permanent
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 vs. C [1970 AC 668]. This is the also in
USA (see 24 American Jurisprudence, para 1001) and
Australia. (See Khamis vs. Khamis) [(1978) 4 Fam. L.R. 410
(full Court (Aus)].
However, there is an apparent contradiction between the
above view and the one expressed in ReH. (infants) 1996 (1)
All E.R. 886 (CA) and in ReE (an infant) 1967 (1) All E.R.
881 to the effect that the Court in the country to which he
child is removed will send back the child to the country
from which the child has been removed. This apparent
conflict is explained and resolved by the Court of Appeal in
1974 in ReL. (minor) (Wardship : Jurisdiction): 1974 (1) All
E.R. 913 (CA) and in RER (Minors) (Wardship : Jurisdiction)
: 1974 (1) All e.R. 913 (CA) and in ReR (Minors) (Wardship
Jurisdiction) 1981 (2) FLR 416 (CA). It was held by the
Court of Appeal in ReL that the view in McKee vs. McKee 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 childs 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, may, be, his native
language is not spoken, or the child gets divorced from the
social customs and contacts to which he has been accustomed,
or if its education in his native land is interrupted and
the child is being subjected to a foreign system of
education, – for these are all acts which could
psychologically disturb the child. Again the summary
jurisdiction 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 will 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
removal of the unauthorised child from the native country
would not come in the way of the Court in the country to
which the child has been remove, 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 Ed. 1988, pp. 1477-
14791 (Bromley, Family law, 7th Ed. 1987). In ReR (Minors)
(wardship: Jurisdiction) 1981 (2) FLR 416 (CA) it has been
firmly held that the concept of forum conveniens has no
place in wardship jurisdiction.
We may here state that this Court in Mrs. Elizabeth
Dinshaw vs. Arvand M. Dinshaw & Another (1987 Z(1) SCC 42),
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
mothers application in India were within six months. In
that context, this Court referred to ReH. (infants), 1966
(1) All ER 886 (CA) which case, as pointed out by us above
has been explained in ReL (1974 (1) ALL ER 913) 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 vs. McKee
(1951 AC 3351) and Jvs. C (1970 AC 668) and the distinction
between summary and elaborate inquiries as stated in ReL
(infants) are today well settled in U.K., 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 judicate.
The facts of the case are that when the respondent
moved the Courts in India and in the proceedings of 1986 for
Habeas Corpus & under Guardian & Wards Act, the Courts in
India thought it best in the interests of the child to allow
it to continues with the mother in India, and those orders
have also become final, The Indian Courts in 1993 or 1997,
when the Child had lived with his mother for nearly 12
years, or more, would not exercise a summary jurisdiction to
return the child to USA on the ground that its removal from
USA in 1984 was contrary to orders of US Courts.
In this connection, it is necessary to refer to the
Hague Convention of 1980 on Civil Aspects of International
Child Abduction. As of today, about 45 countries are
parties to this Convention. India is not yet a signatory.
Under the convention, any child below 16 years who had been
wrongfully removed or retained in another Contracting state,
could be returned back to the country from which the child
had been removed, by application to a Central authority.
Under Article 16 of the Convention, if in the process, the
issue goes before a Court, the Convention prohibits the
Court from point into the merits of the welfare of the
child. Article 12 requires the child to be sent back, but
if a period of more than one year has lapsed from the date
of removal to the date of commencement of the proceedings
before the Court, the child would still be returned unless
it is demonstrated that the child is now settled in its new
environment. Article 12 is subject to Article 13 and a
return could be refused, if it would expose the child to
physical or psychological harm or otherwise place the child
in an intolerable position or if the child is quite nature
and objects to its return. In England, these aspects are
covered by the Child Abduction and Custody Act, 1985.
So far as non-convention countries are concerned, or
where the removal related to a period before adopting the
convention, the law is that the Court to which the child is
removed will consider the question on merits bearing the
welfare o the child as of paramount importance and consider
the order of the foreign court as only a factor to be taken
into consideration as stated in McKee vs. McKLee (1951 AC
351), unless the court thinks it fit to exercise summary
jurisdiction in the interests of the child and its prompt
return is for its welfare, as explained in ReL 1974 (1) All
ER 193 (CA). As recently as 1996-1997, it has been held in
P(A Minor) (Child Abduction: Non Convention Country), Re:
(1996 (3) FCR 233 (CA) by Ward, LJ 1996 (Current Law) (Year
Book) (p. 165-166) that in deciding whether to order the
return of a child who has been abducted from his or her
country of habitual residence-which was not a party to the
Hague Convention, 1980, – the Courts overriding
consideration must be the childs welfare. There is no need
for the Judge to attempt to apply the provisions of Article
13 of the Convention by ordering the childs return unless a
grave risk of harm was established. She also A(A minor)
(Abduction : Non-Convention Country) (re, The Times 3-7-97
by Ward LJ (CA) (quoted in Current Law Aug. 1997, P.13).
This answers the contention relating to removal of the child
from USA.
Again as stated earlier, we do not prima facie find any
willful disobedience on the part of the appellant in not
producing the child before the Bombay High Court warranting
shifting of custody to the father. If the child, after its
three day experience with the father was not willing to come
to the Court, the appellant could not be faulted.
For the aforesaid reasons, the contention of the
respondent based on violation of the earlier orders of the
US Courts or of the Bombay High Court for production of the
child, is rejected.
Point 3: Though we have held that the respondent is not
entitled to permanent custody of the child, It is necessary
to consider whether the respondent is to be given temporary
custody or visitation rights.
On the facts of this case, we are not inclined to grant
temporary custody to the respondent to take the child from
India. That would affect the childs studies and further
there is an exparte order of the US Court given permanent
custody to the father and if that order is executed by the
respondent, there is danger of the boy not returning to
India thus frustrating any order that we are asked to pass
giving temporary custody to the respondent.
As to visitation rights, of course, the respondent can
be given, as long as he wants to visit the child in India,
at Pune, So far as this aspect is concerned, the point has
not been argued before us elaborately but, in case the
respondent is coming to India, he could, in advance of
atleast 4 weeks. intimate in writing to his counsel either
at Bombay/Delhi with copy to the address of the
appellant/child and if that is done, the appellant shall
positively respond in writing. We grant visitation rights
for three hours per day twice a week (for 3 weeks) at a time
and venue at Pune to be agreed by counsel and the appellant,
and this shall be at a place at Pune where the counsel or
their representatives are necessarily present it or near the
venue. the respondent shall not be entitled to take the
child out from the said venue. The appellant shall take all
such steps to comply with the above visitation rights of the
respondent. it will also be open to the parties to move
this Court for any other directions in regard to these
visitation rights.
Appeal of the appellant-mother against order passed in
the application for custody filed by the respondent before
the Family Court, is allowed as stated above and the
respondents application for custody of child is dismissed
subject however to the visitation rights stated above.
Appeal against the order in the petition for declaring the
marriage of appellant and respondent null & void is
dismissed as not pressed in view of the decree of divorce,
already passed. The bailable warrants issued against
appellant are directed to be withdrawn, if they are
subsisting.
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