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SUPREME COURT OF INDIA
Uday Umesh Lalit, Indu Malhotra, JJ.
Jasmeet Kaur - Appellant
Versus
State (NCT Of Delhi) & Anr. - Respondents
Special Leave Petition (Crl.) No. 4858-4859/2018 and Special Leave Petition (Civil) No. 20022/2019
Decided On : 12-12-2019
Matrimonial Dispute - Guardianship and Custody - Guardians and Wards Act, 1890, Hindu Minority and Guardianship Act, 1956 - S. 9 of the Guardians and Wards Act, 1890, S. 6(a) of the Hindu Minority and Guardianship Act, 1956
Fact of the Case:
The case involved matrimonial disputes between the parties, including custody and guardianship issues of their minor children. The husband sought custody of the children in the U.S., while the wife filed a Guardianship Petition in India seeking sole custody of the children.
Finding of the Court:
The court found that the Indian courts lacked jurisdiction to entertain the Guardianship Petition and the issue of custody, and that the courts in the U.S. had the closest connection with the children. The court also emphasized the paramount interest of the children in shared parenting by both parties in the U.S.
Issues: The main issues included the jurisdiction of the Indian courts, the welfare of the children, and the rights of both parents in the custody and upbringing of the children.
Ratio Decidendi: The court's decision was influenced by the interpretation of S. 9 of the Guardians and Wards Act, 1890, which provides that the court where the child 'ordinarily resides' would have jurisdiction to decide guardianship and custody issues. The court also considered the paramount interest of the children in shared parenting and the children's connection to the U.S.
Final Decision: The court directed the wife to return to the U.S. with the minor children and issued various directions regarding their custody, living arrangements, expenses, and legal proceedings.
JUDGMENT
Indu Malhotra, J. - The present Special Leave Petitions arise out of matrimonial disputes between the parties. SLP (Crl.) No. 4858-4859/2018 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 Habeas Corpus Petition (Crl) No. 725 of 2017 filed by 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.
2.3 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. along with Ishnoor.
While she was in India, she delivered the second child viz. Paramvir on 15.09.2016 at New Delhi. Since both parties were U.S. citizens, the minor son - Paramvir would be an American citizen by birth.
3. Proceedings in the U.S. 14 The husband instituted custody proceedings before the US County Court at Stamford, Connecticut seeking custody of the children.
3.1 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.
3.2 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
4.1 The Petitioner - wife filed a Guardianship Petition bearing G.P. No. 64/2016 u/S. 7,9, 11 and 25 of the Guardia
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