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Habeas Corpus in Custody


Supreme Court of India


DATE OF JUDGMENT: 16/02/2000

BENCH:G.T.Nanavati, S.N.Phukan


      This appeal is filed against the judgment and order of the  High Court of Delhi in Writ Petition (Cri.) No.  656 of 1997. Sushil Sharma had filed the writ petition seeking  a writ  of Habeas Corpus in respect of two minor children Nell and Monica, aged 7 and 3 years respectively.  It was alleged that  the children are in illegal custody of Sarita  Sharma, whom  he had married on 23.12.1988.  The High Court  allowed the  petition and directed Sarita to restore the custody  of two  children  to Sushil Sharma.  The passports of  the two children  were also  ordered to be handed  over  to  Sushil Sharma and it was also dedared that it

      was  open to  Sushll Sharma to take the children  to U.S.A. without  any  hindrance.  Sarita  has.,  therefore, filed this appeal.

      Sushil  initiated proceedings .for dissolution of his
marriage  in  the District Court of Tarrant  County,  Texas,
U.SA.m 1995. In the said proceedings interim orders were
passed from  time  to time with resped:  to  the  care and
custody of the children and visitation rights of Sushii :and
Sarita.   Even while the divorce proceedings  were  pending
Sushii and  Sarita lived together, from  November,
Marth, 1997. They again separated.  This time Sarita had
taken  the  children along with her.  It was stated  in the
writ  petition that the Associate Judge, taking note of the
fact  that Sarita had gone away with the children, passed an
order  for  putting  the chhdren in the care of Sushii and
Sarita was only given visitation rights.  On 7.5.1997 Sarita
had picked up the children from Sushll residence in exercise
of  her visitation rights.  She was to leave the children in
the school the next day morning.  Sushii got the information
from  the school that the children were not brought back  to
the school.  On making inquiries he came to know that Sarita
had  vacated her apartment and gone away somewhere.  He had,
therefore, inforrned the police and a warrant for her arrest
was also issued.

      It was further stated in the petition that his further
inquiries  revealed  that Sarita had, without obtaining any
order  from the American Court, flown away to India with the
children  It  was  further stated in the  petition  that  on
12.8.1997 a divorce decree was passed by the Associate Judge
and  In view of the conduct of Sarita he has also passed  an
order  declaring that the sole custody of the children shall
be  of Sushll.   She had been denied  even  the  visitation
rights. Sushll then filed a writ petition in the Delhi High
Court  on 9.9.1997.  Saritas contention In the reply to the
petition was that by virtue of the orders dated 5.2.1996 and
2.4.1997  she  and Sushil were both appointed as  Possessory
Conservators  and, therefore, on 7.5.1997 both the  children
were in her lawful custody.  It was also her contention that
she had brought the children to India with full knowledge of
Sushil.   It  was also her contention that Sushil is  not  a
person fit to be given physical custody of the children  as
he  is alcoholic and violent as disclosed by the material on
record of the divorce proceeding.  The High Court held that
in  view of the Interim orders passed by the American  Court
Sarita committed  a wrong in not informing that  Court and
taking its permission to remove the children from out of the
jurisdiction of that Court.  The High Court took note of the
fact  that s competent Court having territorial jurisdiction

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      now  passed a decree of divorce and ordered that only
the  father.   i.e.  Sushil, shall have the custody  of the
children.   The High Court rejected the contention of  Santa
that  the decree of divorce and the order for the custody of
the children were obtained by Sushil by practicing fraud on
the  Court and further observed that even If that Is so, she
should approach  the American Court for revocation of that
order. Taking this view the High Court allowed  the writ
petition and gave the directions referred to above.

      The  learned  counsel  appearing for  the  appellant
submitted  that In  a Habeas Corpus petition what  a  Court
should consider Is whether the person,.  In respect of whom
a  writ of  Habeas  Corpus is sought, is  kept in  illegal
custody or  is detained  against  his wish. He  further
subrnitted  that  a  Habeas  Corpus   petition is  not   an
appropriate  proceeding for  securing custody  of   minor
chlidren staying with the mother.  He further submitted that
when she came to India with the children she was the natural
lawful guardian   of the   children and  also   managing
conservator  of the children.  With respect to tha decree of
divorce and order for custody of the children, he submitted
that  the  said decree and  order  ware  obtained  by the
respondent by

      suppressing material facts from the Court and tne said
decree and  order, even otherwise, should not be  taken  as
binding on the Courts in India, as they are not consistent
with the law applicable to the parties. He lastly submitted
that  even if the said decree and order are treated as valid
for  the present the High court should not have allowed the
writ  petition without considering   the  welfare  of the

      The record of the divorce proceeding which has come on
the  record  of this  case disdoses  that  prior  to  their
separation  Sushil  and Sarita with their two  children and
Sushils  mother were staying together in U.S.A.  The record
further discloses  that  there   were serious differences
between the two.  Sushil was alcoholic and had used violence
against   Sarita.   Saritas  conduct was  also  not very
satisfactory. Before she came to India with the  children
she  was in lawful custody of the children.  The question is
whether the  custody became illegal as she had committed  a
breach of the order of the American Court directing her not
to  remove the children from the jurisdiction of that  Court
without its permission. After she came to India a decree of
divorce and the order for the custody of the children have

      passed. Therefore,  it is   also  required  to  be
considered whether her custody of the children became llegal

      Mr.   R.K.  3ain, teamed senior counsel appearing for
the  respondent submitted that the facts of this  case are
simllar to  the  facts of Surinder Kaur Sandhu v.   Harbax
Sinah  Sandhu [(1984) 3 SCC 698] and following the  decision
in  that case this appeal should be dismissed. In that case
this Court after referring to the facts observed as under:

      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 has custody.  The modern theory of conflict
of   Laws   recognises and,  In   any event,prefers the
jurisdiction  of  the  State  which has the  most  intimate
contact with the issues arising In the case. Jurisdiction
Is  not attracted by the operation or creation of fortuitous
circumstances  such  as the circumstance as  to  where the
child, whose custody is in issue, is brought or for She time
being  lodged. To allow the assumption of jurisdiction  by
another State in  such circumstances will only  resuit  in
encouraging  forum-shopping.  Ordinarily, jurisdiction must
follow upon functional lines. That is to say, for example,
that in matters relating to matrimony and

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      custody, the law or 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 mede 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  tles with that State in order to make it reasonable and
just  for the courts of that State to assume jurisdiction to
enforce obligations  which  were incurred  therein  by the
spouses.   (See International Shoe Company  v.   State  of
Washington [90 L Ed 95 (1945): 326 US 310], which was not a
matrimonial  case but which is regarded as the fountainhead
of the subsequent developments of jurisdictional issues like
the  one  involved in the instant case.) It is our duty and
function  to  protect  the  wife   against  the burden   of
litigating  in an  inconvenience 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.

      In  that case  the huband had removed  the  boy from
England and  brought  him  to India  and  the wife  after
obtaining  an  order of the English Court, whereby- the boy
became the  Ward  of the Court, came to India and  filed  a
petition in she High Court Punjab and Haryana seeking a writ
of Habeas Corpus.  The High Court

      rejected the  wfres petition on the  grounds,  inter
alla  that  her status in England is that of a foreigner,  a
factory worker and  a wife  living  separately  from the
husband;   that she had no relatives in England;  and  that,
the   child  would  have  to   hve  in lonely and  dismal
surroundings  in  England.   It was also  dismissed  on the
ground that  the  husband  had gone  through a  traumatic
experience  of a conviction on a criminal charge;  that  he
was back home in an atmosphere which welcomed him;  that his
parents were in affluent circumstances; and that, the child
would grow  in  an   atmosphere  of  self-confidence and
self-respect  if he was permitted to live with them.   After
considering the legal position this Court observed.

      Section 6 of the Hindu Minority and Guardianship Act,
1956  constitutes  the father as the  natural guardian  of
aminor son.   But  that   provision  cannot  supersede the
paramount  consideration  as  to what is  conducive  to the
welfare of the minor,

      in Phanwai^i Joahi v.  Madhav Umie [(1998) I SCC 112J,
this  Court  after  referring to the decision of  the  Privy
Council in  Mckee v.  McKee [1951 AC 352:  (1951) I All  ER
942]  and  that of House of Lords in J v.C  (1970  AC 668:
(1969) I All ER 788], the two decisions in which  contrary
view  was taken,, namely, H (Infacnts). Re ((1966) I All ER
886:  (1966) I WLR 381, CA]

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      and  E f Infants).  Re [(1967) I All ER 8813, also the
decision  of  this Court in Elizabeth Dinshaw v.   Aryand  M
Pinshaw [(1987) I SCC 423 and also the Hague Convention  of
1900 observed as under:

      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

      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 In the country  to
which  the  child is removed will consider the question  on
merits bearing the  welfare of the child as  of  paramount
importance  and consider the order of the foreign court  as
only  a factor to be taken into consideration as stated  in
McKee  v.  McKee 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 1., Re.
As  recently  as 1996-97, it has been held In P (  A  minor)
(Child Abduction:   Non-Convention Country), Re:  by  Ward,
LJ.   [1996  Current  Law Year Book, pp.  165-166]  that  in
deciding whether to order the return of a child who has been
abductad  from his or her country of habitual residence  –
which  was not a party to the Hague Convention, 1380, – the

      10  overriding  consideration  must   be the  childs
welfare.  There is no need for the Judge to attempt to apply
the provisitions of Article 13 of the Convention by ordering
the  childs  return  unless  a   grave risk  of  harm was
established. See   also   A   (A   minor) (Abduction:
Non-Convention Country) [Re, The times 3-7-97 by Ward. LJ.
(CA)  (quoted  in Current Law, August 1997, p. 13]. This
answers the contention relating to removal of the child from

      Therefore, it will not be proper to be guided entirely
by  the fact  that  the appellant  Santa  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 Sushll 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 the  American  citizenship and there  is  a
possibility  that in U.S.A.  they may be able to get  better
education,  it is doubtful f 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

      5 years. Ordinarily, a female child should be flowed
to remaln with the mother so that she can be properly locked
after. It  is also  not desirable that  two chHdren are
separatee  from each other.  If a female child has to stay

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