VERY IMPORTANT POINTS
1. In the matter of custody of minor children it will not be proper to be guided entirely by the fact a spouse had removed the children from the country (in this case U.S.A.) despite the order of the Court of that country. The decree passed by the foreign country though a relevant factor cannot override the consideration of welfare of the minor children.
2. In writ of Habeas Corpus right to custody of minor children cannot be decided.

Headnote:Private International Law (Conflict of Law)-Custody of child-Indian spouses living in U.S.A.-Divorce suit in U.S.A.-U.S.A. Court giving custody of children to husband and visiting right to mother-Mother taking children to India-Subsequent decree of divorce by U.S. Court and giving custody right to father cancelling visiting right to mother-Husband filing Habeas Corpus writ before Delhi High Court-High Court directing wife to restore custody of children to husband-Not sustainable-Decree passed by U.S. Court though relevant factor cannot override consideration of welfare of minor children-It will not be proper to be guided entirely by facts wife removed children from U.S. despite order of Court of that country-In interest of children, in Habeas Corpus proceedings, inspite of order of U.S. Court it is not proper to handover custody of children to father-Habeas Corpus petition dismissed-Dhanwanti Joshi v. Madhav Unde, 1997(9) Supreme 220 relied on (Hague Convention of 1980-Artcile 13).
Held : It will not be proper to be guided entirely by the fact that the appellant Sarita 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 Sushil 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 if 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 allowed to remain with the mother so that she can be properly looked after. It is also not desirable that two children are separated from each other. If a female child has to stay with the mother, it will be in the interest of both the children that they both stay with the mother. Here in India also proper care of the children is taken and they are at present studying in good schools. We have not found the appellant wanting in taking proper care of the children. Both the children have a desire to stay with the mother. At the same time if must be said that the son, who is elder than daughter, has good feelings for his father also. Considering all the aspects relalting to the welfare of the children, we are of the opinion that in spite of the order passed by the Court in U.S.A. it was not porper for the High Court to have allowed the Habeas Corpus writ petition and directed the appellant to handover custody of the children to the respondent and permit him to take them away to U.S.A. What would be in the interest of the children requires a full and thorough inquiry and, therefore, the High Court should have directed the respondent to initiate appropriate proceedings in which such an inquiry can be held. Still there is some possibility of mother returning to U.S.A. in the interest of the children. Therfore, we do no desire to say anything more regarding entitlement of the custody of the children. The chances of the appellant returning to U.S.A. with the children would depend upon the joint efforts of the appellant and the respondent to get the arrest warrant cancelled by explaining to the Court in U.S.A. the circumstances under which she had left U.S.A. with the children without taking permission of the Court. There is a possibility that both of them may thereafter be able to approach the Court which passed the decree to suitable modify the order with respect to the custody of the children and visitation rights. (Para 6)

JUDGMENT

G.T. Nanavati, J.-This appeal is filed against the judgment and order of the High Court of Delhi in Writ Petition (Crl.) No. 656 of 1997. Sushil Sharma had filed the writ petition seeking a writ of Habeas Corpus in respect of two minor children Neil 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 declared that it was open to Sushil Sharma to take the children to U.S.A. without any hindrance. Sarita has, therefore, filed this appeal.

2. Sushil initiated proceedings for dissolution of his marriage in the District Court of Tarrant Country, Texas, U.S.A. in 1995. In the said proceedings interim orders were passed from time to time with respect to the care and custody of the children and visitation rights of Sushil and Sarita. Even while the divorce proceedings were pending Sushil and Sarita lived together from November, 1996 to March, 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 children in the care of Sushil and Sarita was only given visitation rigths. On 7.5.1997 Sarita had picked up the children from Sushil s residence in exercise of her visitation rights. She was to leave the children in the school the next day morning. Sushil 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, informed 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 12.6.1997 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 Sushil. She had been denied even the visitation rights. Sushil then filed a writ petition in the Delhi High Court on 9.9.1997. Sarita s 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 a 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 Sarita 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.

3. The learned counsel appearing for the appellant submitted that in a Habeas Corpus petition what a Court should consider

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2000 Supreme(SC) 377

Cases Referred (5)