IMPORTANT POINT
Orders relating to custody of children are by their very nature not final, but are interlocutory in nature and subject to modification at any 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.

Headnote:(i) CHILD CUSTODY-Guardian and Wards Act-Hindu Minority and Guardianship Act, 1890-Section 13-Divorce between husband and wife-Child, boy living with his mother for more than 12 years in India-Mother has an order in her favour of High Court of Bombay 1986-Order giving her permanent custody of the child-Fresh proceedings started in 1993 by husband-There must be proof of substantial change in circumstances presenting a new case-Husband living in USA-His financial capacity even if superior to that of his wife-Not a sole ground for disturbing the child from his mother s custody-Proposal of immediate American education which father is prepared to finance-Not a sufficient ground for shifting the child to father s custody-Child is citizen of USA by birth-No substantial change in circumstances between 1990 and 1993 or 1993 to justify shift over permanent custody of child.
       Held 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 afresh in 1993 by the husband, one has to therefore 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. (Para 17)
       Further held that orders relating to custody of children are by their very nature not final, but are interlocutory in nature and subject to modification at any 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. (Para 18)
       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 our opinion cannot be the sole ground for disturbing the child from his mother s 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 father s custody, ignoring the fact that for the last more than 12 years, the child has been in mother s custody. (Para 21)
       (ii) CHILD CUSTODY-Divorce between husband and wife-appellant wife had, during 1984, removed the child from US to India violating Court orders in that country-Whether this conduct disqualified the appellant from having custody of the child?-(No)-Indian Courts empowered to consider the question on merits, having regard to the delay from 1984-Welfare of the child to be of paramount importance-Hague Convention of 1980 on Civil Aspects of International Child Abduction.
       Held : The facts of the case are that when the respondent moved the Courts in India and in the proceedings of 1986 for Habeas Corpus and under Guardian and Wards Act, the Courts in India thought it best in the interests of the child to allow it to continue with the mother in India, and those orders have also become final. The Indian Courts in 1973 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. (Para 28)
       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 of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration. (Para 30)
       We do not prima facie find any wilful 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. (Para 31)
       (iii) CHILD CUSTODY-Father living in USA held not entitled to permanent custody of the child-Child, boy living with his mother for more than 12 years in India-Court not inclined to grant temporary custody to father to take the child from India-Visitation rights for three hours per day twice a week (for 3 weeks) at a time when father in India-Venue at Pune to be agreed.
       Held : 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 child s studies and further there is an exparte order of the US Court giving 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. (Para 34)
       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 of 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 at or near the venue. The respondent shall not be entitled to take the child out from the said venue. (Para 35)

JUDGMENT

M. Jagannadha Rao, J.-These two appeals are connected and can be disposed of together. C.A. No. 5517 of 1997 arises out of orders 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 1.12.1995 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 the appellant had no case on merits.

2. The facts leading to the appeals are as follows :-

The respondent Mr. Madhav Unde 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 25.10.1977 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 other 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 v. Tej Singh1. That would mean that the Indian Court held that the US divorce decree dated 25.10.1977 was not binding on the said Bhagyawanti.

3. 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 born to them in USA and was named Abhijeet. Due to certain compelling circumstances, the mother (appellant) and the child left the respondent on 20.4.83 when 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 in 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.

4. 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. Later on, 30.4.84 the Court passed an order exparte modifying the earlier order into 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 hearing was to be held on all issues. On 28.4.86, the US Court passed an exparte order granting permanent custody to the respondent-husband.

5. 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 respondent s 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

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1997 Supreme(SC) 1418

Cases Referred (5)