SANTA SHARMA vs SUSHIL SHARMA
Supreme Court of India
PETITIONER:SANTA SHARMA
Vs.
RESPONDENT:SUSHIL SHARMA
DATE OF JUDGMENT: 16/02/2000
BENCH:G.T.Nanavati, S.N.Phukan
JUDGMENT:Q.T. NANAVATI.J.
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, 1996.to
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
has
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
children.
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
been
passed. Therefore, it is also required to be
considered whether her custody of the children became llegal
thereafter.
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
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]
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
authority.
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
courts
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
U.S.A.
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
about
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