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Jasmeet Kaur vs State (Nct Of Delhi) on 12 December, 2019

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Special Leave Petition (Crl.) No. 4858­4859/2018

Jasmeet Kaur …Petitioner

versus

State (NCT of Delhi) Anr. …Respondent

WITH
Special Leave Petition (Civil) No. 20022/2019

Jasmeet Kaur …Petitioner
versus

Navtej Singh …Respondent

JUDGMENT

INDU MALHOTRA, J.

Signature Not Verified

Digitally signed by
INDU MARWAH

1. The present Special Leave Petitions arise out of matrimonial
Date: 2019.12.12
17:16:28 IST
Reason:

disputes between the parties. SLP (Crl.) No. 4858­4859/2018

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has been filed by the Petitioner – wife to challenge the Orders
dated 06.03.2018 and 21.05.2018 passed by the High Court in
a Habeas Corpus Petition (Crl) No. 725 of 2017 filed by the
Respondent – husband, seeking issuance of a writ of habeas
corpus for production of the children, who have been illegally
abducted by the Petitioner – wife from his custody in the USA.

SLP (C.) No. 20022/2019 arises out of a Guardianship
Petition filed u/S. 9 of the Guardians and Wards Act, 1890
(“GWA”) by the Petitioner – wife praying for permanent and sole
custody of the minor daughter – Ishnoor now aged about 7
years, and minor son – Paramvir aged about 2 years.

Since both SLPs arise out of common facts, they are being
disposed of by this common judgment.

2. The background facts in which the present SLPs have been filed
are briefly set out herein below:

2.1 The Respondent – husband migrated to the U.S. with his
parents in 1994, when he was 14 years old, and has been
permanently residing there since the past over 25 years,
and has acquired U.S. citizenship. The Respondent –
husband has been practicing as a Dentist in the U.S.

2.2 The Petitioner – wife moved to the U.S. in 1998, when she
was 17 years old to pursue a degree in Computer Science
from Hunter College in New York. The Petitioner met the
Respondent sometime in 2000, while she was a student.
After meeting the Respondent, she decided to do a course
in Dentistry, and subsequently qualified as a Dentist.

2

2.3 On 22.08.2006, the parties got married in New York and
obtained a certificate of registration of marriage from the
Marriage License Bureau, New York.

On 23.12.2007, the parties came to India, and solemnized
their marriage under Sikh rites in the presence of their
families.

2.4 The parties have lived in the U.S. throughout the
subsistence of their marriage, and jointly started running
a dental clinic viz. ‘South End Dental Clinic’ at Norwalk,
Connecticut.

The daughter – Ishnoor was born out of the wedlock
on 27.08.2012 and acquired U.S. citizenship by birth.

2.5 After the birth of their daughter, the Petitioner – wife
applied for citizenship, and obtained U.S. citizenship in
April, 2013.

2.6 On 26.01.2016, the couple along with their daughter –
Ishnoor and the parents of the Respondent came to New
Delhi, to attend the wedding of her brother, on a return
ticket. The Petitioner – wife was pregnant at that time. The
parties were scheduled to return to the U.S. on
06.03.2016. The Petitioner – wife however refused to
return to the U.S. alongwith Ishnoor.

While she was in India, she delivered the second child
viz. Paramvir on 15.09.2016 at New Delhi. Since both

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parties were U.S. citizens, the minor son – Paramvir would
be an American citizen by birth.

3. Proceedings in the U.S.

3.1 The husband instituted custody proceedings before the US
County Court at Stamford, Connecticut seeking custody of
the children.

3.2 The Superior Court of the State of Connecticut at
Stamford/Norwalk passed an ex ­ parte interim Order
dated 17.11.2016 whereby temporary custody of both
children was granted to the Respondent – husband, with
supervised visitation rights for the Petitioner – wife.

3.3 On 25.01.2017, the Superior Court passed a Final Order
directing the Petitioner – wife to return to the U.S with the
minor children, and granted sole, legal and physical
custody of both children to the husband, with supervised
visitation rights to the Petitioner – wife.

The Superior Court ordered that when the wife
appears before the Court, she would be given an
opportunity to be heard, and to lead evidence with respect
to the issue of custody of the children, which would be
dealt with fairly, after evidence was led by both parties.

4. Guardianship Proceedings in India

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4.1 The Petitioner – wife filed a Guardianship Petition bearing
G.P. No. 64/2016 u/S. 7,9, 11 and 25 of the Guardians
and Wards Act, 1890 read with S. 6 (a) of the Hindu
Minority and Guardianship Act, 1956 before the Family
Court, Tis Hazari, New Delhi seeking sole and permanent
custody of both the children.

4.2 The Respondent – husband filed an Application under
Order VII, Rule 11 CPC seeking rejection of the plaint.

4.3 The Family Court vide Order dated 26.12.2016 allowed
the Application, and dismissed the Guardianship Petition.
The Court held that the parties and their daughter –
Ishnoor were “ordinarily residing” in the U.S. at the time
of filing the Guardianship Petition, and their son –
Paramvir was a U.S. citizen by birth, consequently, they
would be governed by the laws of the U.S.

4.4 The Petitioner – wife filed MAT. Appeal (FC) No. 3 of 2017
u/S. 19 of the Family Courts Act, 1984 before the Delhi
High Court to challenge the Order dated 26.12.2016
passed by the Family Court.

The Delhi High Court vide Order dated 19.09.2017
dismissed the Appeal, and held that the issue of custody
of the children should be decided by the court having
closest connection with the children, which is the Courts
in the U.S.

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4.5 Aggrieved, the Petitioner ­wife challenged filed Civil Appeal
No. 2291 of 2018 before this Court to challenge Judgment
dated 19.09.2017.

4.6 This Court vide Order dated 20.02.2018 allowed the Civil
Appeal filed by the Petitioner – wife, and set aside the
Order passed under Order VII Rule 11. The case was
remitted to the Family Court to be decided on merits.

4.7 The Family Court vide Order dated 20.08.2018 decided
that the Indian Courts would have no jurisdiction to
entertain the Petition u/S. 9 of the Guardians and Wards
Act.

The Family Court held that the Petitioner – wife was
an American citizen. She had an American Passport, with
an OCI Card. The minor girl – Ishnoor was also holding an
American passport. On account of the Petitioner – wife
having prolonged her stay in India, the passport of the
daughter expired in October 2017, which has not been
renewed ever since. Insofar as the son is concerned, the
Petitioner ­ wife had not obtained the U.S. Passport even
though he was an American citizen by birth. Both children
had no valid documents for their stay in India. Since the
children were residing in India in breach of immigration
laws, they would not fall within the ambit of ‘ordinarily
residing’ in India as provided by Section 9 of the Guardians
and Wards Act.

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On the issue of custody, the Family Court held that
the paramount interest of the children would lie in shared
parenting by the parties in the U.S., and that the Petitioner
– wife was not entitled to the sole custody of the children.

With respect to jurisdiction, the Family Court held
that the Indian Courts would lack jurisdiction to entertain
the Guardianship Petition.

Aggrieved, the Petitioner – wife filed MAT. Appeal (FC)
No. 244 of 2018 before the Delhi High Court to assail the
Order dated 20.08.2018 passed by the Family Court. The
High Court by the impugned Judgment and Order dated
01.07.2019 dismissed the appeal.

The High Court held that the Hindu Minority and
Guardianship Act, 1956 does not override the Guardians
and Wards Act, 1890 which is supplemental to the latter.
S. 9 of the Guardians and Wards Act, 1890 provides that
the Court where the child ‘ordinarily resides’ would have
jurisdiction to decide the issues of guardianship and
custody.

The High Court noted that the Petitioner – wife had
purchased properties in the U.S., and had applied for U.S.
citizenship in 2012, which was granted to her in 2013, and
was not surrendered to date. These facts reflect that the
Petitioner – wife did not intend to make India her
permanent home.

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The conduct of the parties revealed that they had
abandoned their domicile of origin in India, and therefore,
could not be said to be ‘ordinarily residing’ in India. As a
consequence, the courts in Delhi would have no
jurisdiction to entertain the Petition u/S. 9 of the
Guardians and Wards Act, 1890.

The Court held that it would not be difficult for the
minor girl – Ishnoor to get accustomed to the life and
environment of America, since she was 7 years old, and
had spent the initial 4 years of her life in the U.S. Once she
starts going to school in the U.S., she would acclimatize
herself to that country. The minor son – Paramvir being a
little over two years old would be in a position to adapt to
the lifestyle and customs of the US.

The High Court held that this was not a case where
the children had grown up and rooted themselves in India.
The welfare of the children would lie in joint parenting by
both parents in the U.S., which was not possible if the wife
retained the sole custody of the children in India. The wife
could therefore not be granted permanent and sole custody
of the children.

The Judgment and Order dated 01.07.2019 passed by
the High Court dismissing the MAT. Appeal (FC) No. 244 of
2018 has been challenged by the Petitioner – wife before
this Court by way of SLP (C.) No. 20022/2019.

5. Habeas Corpus Proceedings in India

8
5.1 After dismissal of the first round of litigation pertaining to
the guardianship of the children, the Respondent –
husband filed Writ Petition (Crl.) No. 725 of 2017 before
the Delhi High Court for issuance of a Writ of Habeas
Corpus to direct the Petitioner­wife to produce the minor
children i.e. Ishnoor and Paramvir before the Court, along
with their U.S. Passports. The Respondent – husband
further prayed that the High Court permit him to take the
minor children with him to the United States.

The High Court vide Judgment and Order dated
06.03.2018 allowed the Habeas Corpus Petition and
directed the Petitioner – wife to return to the U.S. along
with the two minor children within three weeks.

It was evident from the conduct of the parties that
they had abandoned their domicile of origin i.e. India, had
set up their matrimonial home in the U.S. and raised their
daughter in that environment. When the Petitioner – wife
decided not to return to the U.S. in January, 2016 she
acted in her self­interest, and not in the best interest of
her children.

The High Court held that the children have the right
to be brought up by both parents as a family in the U.S. It
is in the best interest of the children that the Petitioner –
wife returns to the U.S.

9

The High Court issued directions to the Respondent –
husband to ensure that once the Petitioner – wife returns
to the U.S., she is not faced with any adversity or hostility
by the Respondent – husband, or the American legal
system.

The High Court further directed the Respondent –
husband to move the Superior Court, Judicial District
Stamford, Norwalk for re­call of Orders dated 17.11.2016
and 25.01.2017 wherein the Petitioner – wife was directed
to grant temporary physical and legal custody of the minor
children to the Respondent – husband. Furthermore,
when the Petitioner – wife lands in the U.S. with the two
minor children, they shall not be removed from her
custody.

The two minor children shall continue to remain in
the custody of the Petitioner – wife even after she returns
to the U.S., till the competent court in the U.S. passes
fresh orders on the aspect of temporary/permanent
custody of the children, after granting adequate
opportunity of hearing to both parties. The Respondent –
husband would not make any attempt to take the minor
children out of the custody of the Petitioner – wife by
force. The Respondent – husband shall however be
entitled to meet the children and spend time with them as
may be mutually agreed between the parties.

10

The Respondent – husband undertook not to initiate
any criminal/contempt proceedings against the wife in the
U.S.

The High Court directed the Respondent – husband to
file an Affidavit of Undertaking in terms of the conditions
mentioned in the Order dated 06.03.2018.

5.2 In compliance with the Order dated 06.03.2018 passed by
the High Court, the Respondent – husband took the
following steps: ­

a) Submitted an Affidavit of Undertaking dated
20.03.2018 before the Delhi High Court to comply
with the directions stated hereinabove.

b) The Respondent obtained an Order dated
14.05.2018 from the Superior Court of Stamford,
the operative part of which is extracted hereinbelow:

“1. The prior orders for sole physical and legal
custody in favour of the Plaintiff shall be recalled.

2. The prior orders remain in place that Jasmeet
Kaur is to return immediately to Connecticut with
the minor children.

3. The minor children shall remain in the custody
of Jasmeet Kaur, and the Plaintiff shall have
reasonable interim visitation with the minor
children as agreed or Court ordered upon the minor
children’s return with Jasmeet Kaur to
Connecticut, until further custody orders are
determined by the Connecticut Superior Court after

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granting adequate opportunity of hearing to both
the parties.

4. That the Affidavit of Undertaking of the Plaintiff,
confirming how he has confirmed his conduct to
the Order of the High Court of Delhi at New Delhi
on March, 6, 2018, submitted as Exhibit B to the
Motion for Order (Tab 2 of Exhibit 2) is hereby
approved and so ordered.

That Attorney William Taylor is hereby appointed
as escrow agent pursuant to Exhibit C to the
Motion for Order (Tab 3 of Exhibit 2).”

c) The Respondent deposited an amount of USD
25,000 in an Escrow Account to ensure compliance
with the payment terms. This account would be
operated in accordance with the directions and
Orders of the US Supreme Court at Stamford,
Connecticut, USA where the matter between the
parties was pending.

5.3 The High Court vide Order dated 21.05.2018 directed the
Petitioner – wife to return to the U.S. along with both the
children within 3 weeks, failing which, the children would
be handed over to the Respondent – husband along with
their respective Passports.

5.4 The Petitioner – wife challenged the Orders dated
06.03.2018 and 21.05.2018 passed in the Habeas Corpus
Petition before this Court by way of SLP (Crl.) No.4858­
59/2018.

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6. We have heard Ms. Malvika Rajkotia, Ld. Counsel appearing for
the Petitioner – wife, and Mr. Anil Malhotra, Ld. Counsel
appearing for the Respondent – husband.

6.1 During the course of arguments before this Court, the
Petitioner – wife agreed to return to the U.S with the minor
children.

In these circumstances, we are not touching upon the
issue of jurisdiction.

7. We posted the matter for hearing in Chambers on
10.12.2019, when both parties alongwith the minor children
appeared before us. The Petitioner and Respondent perused
the directions which are being issued by this Order, and
agreed to the same.

We direct that both the present Special Leave Petitions be
disposed of with the following directions :­

i. The parties will jointly apply to the U.S. Embassy for
renewal of the U.S. Passport of their daughter – Ishnoor,
and for issuance of an American passport for their son –
Paramvir.

ii. The Petitioner – wife along with the two minor children­
Ishnoor and Paramvir will return to Norwalk, Connecticut,
USA within a period of two weeks from the issuance of the
Passports of the minor children.

13

If the Petitioner fails to comply with the aforesaid
direction, the children will be handed over to the
Respondent – husband who will take them back to the
U.S.

iii. The Respondent – husband offered that upon returning to
the U.S., the Petitioner – wife may return to the
matrimonial home at Norwalk, Connecticut.

If the Petitioner – wife however chooses to live
independently, the Respondent – husband will provide
suitable accommodation to the Petitioner – wife in
Norwalk, Connecticut, with all basic amenities.

In the alternative, the Petitioner – wife may identify a
suitable accommodation, in the vicinity of Norwalk,
Connecticut, so that the Respondent – husband has
access to the children.

iv. The Petitioner – wife undertakes to provide visitation and
unsupervised access to the Respondent – husband every
weekend, which arrangement may be modified by a Court
of competent jurisdiction in the U.S.

v. The Respondent – husband offered that upon returning to
the U.S., the Petitioner – wife may continue to practice
dentistry at their joint clinic viz. South End Dental Clinic
at Stamford.

If the Petitioner – wife is not interested to jointly
practice with the Respondent – husband at their clinic,

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the parties may take steps to divide the assets equally.

The division of assets shall be completed within a period
of 4 months.

vi. The Respondent – husband will take steps to get the
children admitted to a reputed school in the vicinity.

vii. The Respondent – husband has agreed to provide the
following expenses to the Petitioner – wife:

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1. $ 2000 approx. towards rent
2. $ 1000 towards food/clothing/other
needs
3. $1000 towards child care/nanny
4. $200 towards car expenses
5. $100 towards fuel expenses
6. $454.85 towards health insurance of
the wife
7. $281.07 towards health insurance of
the minor daughter –
Ishnoor
8. $281.07 towards health insurance of
the minor son – Paramvir
9. $899 towards pre­school fees of
Ishnoor
10. $1500 towards legal expenses

That even though the aforesaid amounts work out to
approximately, US $ 7,715, we direct that the amount be
rounded off to US $ 8,000 per month to the Petitioner –
wife to meet all her expenses.

The payment of these expenses would be made for a
maximum period of 12 months, or until the Petitioner –
wife gets employed in the U.S. and obtains division of their
assets, whichever is earlier.

The amount deposited in the Escrow Account by the
Respondent – husband as a security to ensure compliance

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of the payment terms will continue during this period. The
Escrow Account shall be operated as per Orders passed by
a competent Court in the U.S.

viii. After the assets are divided, both parties will share equally
the expenses towards the education and upbringing of the
children.

ix. We were informed that the Petitioner – wife has instituted
Divorce proceedings against the Respondent – husband
before the Family Court, Tis Hazari, New Delhi. The
Petitioner – wife has agreed to withdraw the divorce
proceedings within a period of two weeks from this Order.

The Special Leave Petitions stand disposed of in the above­
mentioned terms.

…..……………………………J.
(UDAY UMESH LALIT)

..….…………………………..J.

(INDU MALHOTRA)
New Delhi
December 12, 2019.

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