|
Equivalent
Citation: 1997(6)ALT12(SC), 1998(1)BLJR743, I(1998)DMC1SC, JT1997(8)SC720,
1998-1-LW161, 1997(6)SCALE624, (1998)1SCC112, [1997]Supp5SCR30, 1998(1)UJ47 IN THE
SUPREME COURT OF INDIA Civil
Appeal Nos. 3517-18 of 1997 Decided
On: 04.11.1997 Appellants: Dhanwanti Joshi Hon'ble
Judges: S. B. Majmudar and M. Jagannadha Rao, JJ. Counsels: For Appellant/Petitioner/Plaintiff:
Party in person For
Respondents/Defendant: Kailash Vasdev, Adv. Subject: Family Acts/Rules/Orders: Cases
Referred: Satya
v. Teja Singh, MANU/SC/0212/1974; Sailendra
Narayan Bhanja Deo v. State of Orissa MANU/SC/0081/1956; Rosy
Jacob v. Jacob A. Chakramakkal, MANU/SC/0260/1973; S
v. W, (1981) 11 Fam Law 81 ; Walker v. Walker &
Harrison, 1981 New Z R L 257 ; McKee v. McKee, 1951 AC
352, (1951) 1 All ER 942; J v. C, 1970 AC 668, (1969) 1
All ER 788, (1969) 2 WLR 540; Elizabeth Dinshaw v. Arvind M.
Dinshaw, ; In Re: McGrath (infants) (1893) 1Ch 143 : 62
LJ Ch 208; In Re: H. (infants) (1966) 1 All ER 886; In Re: E.
(an infant) (1967) 1 All ER 881; In Re: L. (minors) (wardship :
jurisdiction) (1974) 1 All ER 913; In Re: R. (minors) (wardship :
jurisdiction) 1981 2 FLR 416 (CA); In Re: P (A minor) (Child
Abduction: Non-Convention Country) (1996) 3 FCR 233 CA; Khamis v.
Khamis (1978) 4 Fam LR 410 Prior
History: From
the Judgment and Order dated 10-6-1997/4-7-1197 of the Bombay High Court in
M.J.P. No. 985 of 1985 and C.A. No. 3411 of 1997 Citing
Reference: 5 5 Case
Note: Family
- custody of child - Sections 12, 17 and 48 of Guardians and Wards Act, 1890,
Section 11 of CPC, 1908 and Private International Law - appeal of
appellant-mother against Order passed in application for custody of child by
respondent-father before Family Court - earlier proceedings under Guardians
Act which decided to give custody of child to appellant acts as res judicata
for respondent as it concerns same subject matter - in present proceedings
started afresh by respondent change in custody can be granted only if
respondent proves any substantial change of circumstances - sole criteria of
respondent being financially well off to afford USA education for his child
should not have been considered by Family and High Court - international
norms regarding applicability of judgment of US Courts on Indian Court is
subject to paramount consideration of welfare of child - thus Order of US
Court granting custody to respondent is not binding on Apex Court as under
given circumstances child is well settled with his mother - also no wilful
disobedience on part of appellant unable to produce child in Court as he was
unwilling to come to his father - held, custody to be maintained with
appellant-mother in best interests of child. JUDGMENT M.
Jagannadha Rao, J. 1. These
two appeals are connected and can be disposed of together. CA No. 5517 of
1997 arises out of orders dated 10-6-1997 and 4-7-1997 passed by the High
Court in appeal against MJ Petition No. 985 of 1985 filed by the appellant in
the civil court which was transferred to the Family Court. CA 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 No. 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 USA) on 11-6-1982 at Omaha, State of Nebraska in the USA. 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 ex parte 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 of 1981 in the District Court, Nagpur
and claimed that the decree obtained by the 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 11-6-1984 relying upon Satya v. Teja Singh, MANU/SC/0212/1974 :
1975CriLJ52 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 respondent 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 20-4-1983 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 ex
parte on 23-9-1983. On 20-2-1984 the child reached India with the
appellant-mother. The respondent then obtained an order on 11-4-1984 ex parte
containing directions as to '''visitation" rights in his favour. Later,
on 30-4-1984 the Court passed an order ex parte 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 28-4-1986, the US Court passed an ex parte 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 MJ Petition No. 985 of 1985 in the
Civil Court, Bombay for a declaration that her marriage with the 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 on 23-9-1983 was not binding on her and for injunction against the
respondent from removing the child from her. That the divorce decree obtained
on 25-10-1977 by the respondent against Bhagyawanti did not bind Bhagyawanti
has now been declared in the fresh divorce decree passed by the Indian Court
on 11-6-1984 as stated above. 6. The
respondent came to Bombay and filed Habeas Corpus Petition No. 328 of 1986 in
the High Court of Bombay and the said writ petition was dismissed on
15-4-1986 and custody was granted to the appellant by the High Court. The
Court said (in an elaborate order): "Therefore, taking the totality of circumstances into
consideration, we find that the respondent Dhanwanti should be allowed to
retain the custody for the present and at this stage. The interim order
passed on 3-4-1986 is revoked. Custody of Abhijeet be handed over to the
mother Dhanwanti forthwith. The petitioner-father Madhav will have right of
visitation between 4.00 p.m. and 6 p.m. everyday. Subject to the above, rule
is discharged." (The
permanent custody order of US Court dated 28-4-1986 in favour of the husband
is after this date.) Special Leave Petition No. 1290 of 1986 filed by the
respondent was dismissed on 8-5-1986. 7. We
come to the next stage of proceedings under the Guardians and Wards Act and
under 13 of
the Hindu Minority and Guardianship Act, 1890 filed by the appellant for
permanent guardianship of the person/property of her son and other reliefs.
The Court appointed her as permanent and lawful guardian of the
person/property of the child on 20-8-1986. This was an ex parte order in
favour of the appellant-wife. The application filed by the respondent for setting
aside the same was dismissed on 23-1-1987 by the trial court. Appeal No. 1313
of 1987 to the High Court filed by the respondent-husband was dismissed on
23-11-1987 observing: "We
have heard Mr. Ganesh, learned counsel appearing on behalf of the appellant,
at length and we find that there is no merit whatsoever in the appeal. From
what has been stated hereinabove it is very clear that the appellant has been
fighting with the respondent for over several years. The conduct of the
appellant clearly indicates that he is a much married man and he had entered
into marriage with the respondent by suppressing the fact of the first
marriage with a girl at Nagpur. The earlier judgment of the Division Bench of
this Court clearly indicates that the appellant had treated the respondent
with cruelty and the respondent was required to leave the matrimonial house
with the child under great stress and compulsion. The conduct of the
appellant does not indicate that he is interested in the welfare of the child
but the anxiety of the appellant seems to be to seek custody of the child
only with a view to avoid payment of maintenance for the child. Apart
from the merits of the claim, we must bear in mind that whatever may be the
disputes between the parties, the Court has to consider in the proceedings
under the Guardianship Act as to what is in the interest of the minor child.
The minor child has remained with the mother for the last over four years and
in our judgment it would not be in the interest of the minor to be snatched
away from the mother and the order of the learned Single Judge appointing the
mother as guardian could not be faulted with." 8. Once
again, the respondent filed appeal in this Court in CA No. 1289 of 1990. This
was dismissed on 10-10-1990. This Court, however, while dismissing the
appeal, made an observation: "We make it clear that we have decided the case only on the
grounds which we have set earlier and we decline to express any view on the
legal merits of the decree or on merits of the disputes between the parties
concerned except to the extent that there was no good cause for setting aside
the ex parte decree. If the appellant has any other remedy open in law
against the ex parte decree this judgment will not preclude him from pursuing
such remedy." 9.
Taking advantage of the said observation, the respondent filed Case No. D-9
of 1993 in the Family Court, Bombay afresh for custody of the child. That
petition was clubbed with MJ Petition No. 985 of 1985 filed earlier by the
appellant in the City Civil Court regarding declaration that her marriage was
void, which was transferred to the Family Court. The Family Court passed an
order dated 1-12-1995 allowing the respondent's Application No. D-9 of 1993
and granting custody of the child to the respondent and dismissed the
appellant's MJ Petition No. 985 of 1985 filed to declare her marriage with
the respondent as null and void. 10. The
appellant preferred appeals to the High Court. Stay was granted. It appears,
during the hearing of the appeal, the respondent was given custody of the
child for 4 days but on the first day the boy ran away from the respondent
and was traced, and then all the parties met at a police station and the
custody of the boy was given to the respondent for three days. The boy was
later taken by the respondent to his village called Baddlapur in Maharashtra
for those three days. The appellant's appeals were listed after vacation in
the first week for 9th June. It is the case of the appellant that the case
was not listed on 9th. It was listed on 10-6-1997, and she had no notice and
when the advocate requested the Court for time, the case was not adjourned
but was only passed over till 2.45 p.m. and then at 2.45 p.m. it was
dismissed for non-prosecution. Application No. 3411 of 1997 to set aside the
same was dismissed on 4-7-1997. It was also held in the order dated 4-7-1997
that the appellant-mother had no case on merits for retaining custody of the
child. 11.
Aggrieved by the order dismissing the appeals for default and the refusal to
restore the same, and aggrieved by the findings given on merits of the
application for custody and aggrieved by the dismissal of the appeal in the
case for declaring the marriage as null and void -- without giving any
reasons, -- these two civil appeals have been preferred by the appellant. 12. We
have heard arguments on the merits of the petition filed for custody of the
child. So far as the appeal relating to declaration of the marriage as null
and void filed by the appellant is concerned, the appellant stated fairly
that she does not want to pursue the same. Therefore, the earlier decree of
divorce as between her and her husband can be treated as having become final. 13. So
far as the dismissal of the appellant's appeal (against the orders in the
respondent's Application No. D-9 of 1993 for custody) for default on
10-6-1997 and the refusal of the High Court on 4-7-1997 to restore the same,
we have been taken through the affidavits and the circumstances of the case
and we are satisfied that the High Court was not justified in not restoring
the appeals and in refusing to give a hearing. It appears to us that the High
Court did not give due importance to the fact that the case related to
custody of a child who has been living with the appellant for more than 12
years or more and that it involved serious consequences for the child,
whatever be the fault of the appellant. It was a fit case where the appeal
should have been restored. If the child, on account of his experience in the
three days with his father, -- during the pendency of the appeal when
temporary custody was given to the respondent -- was not willing to accompany
the mother to the High Court, prima facie it appears to us that there was no
ground for initiating contempt proceedings against her for not producing the
child. Be that as it may, the said contempt proceedings will be disposed of
in accordance with law by the High Court. In any event, we direct recall of
the bailable warrants issued against the appellant, if they are still
pending. 14.
Before the hearing of the case, we interviewed the boy in chambers and found
that he was quite intelligent and was able to understand the facts and
circumstances in which he was placed. He informed us that he was not inclined
to go with his father to USA and he wants to continue his studies in India
till he completes 10+2 or he finishes his graduation. He feels that he will
then be in a position to decide whether to go to USA for higher studies. He
wants to continue to be in the custody of his mother. He told us that his
desire is to become a Veterinary Doctor. 15.
Parties and counsel on both sides wanted us to dispose of the custody matter
on merits. 16. The
High Court while holding that the appellant had no case on merits, has given
only one reason for granting custody to the father. It stated that the father "who has acquired citizenship in America is well placed in
his career. The boy is nearing the age of 14. The paramount interest of a boy
aged 14 years of age is definitely his future education and career. The further
education of the boy whose father is well placed in America will be
comparatively superior. The lower court took note of this circumstance and
granted custody of the boy to the respondent. Therefore, we do not find any
error in the order passed by the court below." It is
clear that the Family Court and the High Court have therefore based their
decision on the said sole circumstance regarding the financial capacity of
the father to give better education to the boy in USA. Learned counsel for
the respondent-husband has contended, in addition, that the appellant had
violated court orders in USA and brought the child to India and had also not
produced the child in the Bombay High Court and had violated court
directions, and that by such conduct she was disqualified from having custody
of the child. It was also argued that she was living in Bombay while the
child, is studying at Pune, and that she does not have the capacity to
educate the child in USA. The husband led evidence that his brother and
brother's wife are prepared to come to USA to take care of the child if the
child should come to USA. 17. On
the other hand, the appellant has contended that earlier orders granting
custody to her have become final and that there is no change in the
circumstances warranting the shifting of the custody to the father, that the
child cannot be uprooted from the environment in which he has grown for the
last more than 12 years, that she has the capacity to educate the child in
USA, that the child is a citizen of USA and is entitled to go there in his
own independent right at any time, that in USA, there is nobody to take care
of the child in the husband's household and that the respondent's
brother/wife could not be substitutes for the mother, even if they go to USA.
She submitted that the respondent made efforts to take away the child from
her within 35 days of its birth and she had to leave the house in USA with
the child and the child was sent to India through her mother, she escaped the
detectives employed by the respondent and proceeded to India via Australia.
Her bringing the child to India in those circumstances cannot be a ground for
shifting custody of the child to the respondent. She contended that the
courts below could not ignore the earlier orders of the High Court in the
habeas corpus case or the orders in the proceedings under the Guardians and
Wards Act, 1890. The Supreme Court had also rejected the respondent's appeal
in both cases. In the latter case the High Court/Supreme Court had refused to
set aside the ex parte orders passed in her favour and against the
respondent. This operated as res judicata or estoppel. She also contended
that when the child was not willing to come before the Bombay High Court in
view of his "unpleasant" experience with the father for 3 days when
the Bombay Court gave custody to the father, she could not be found fault
with for not bringing the child to the Court and that fact cannot also be a
ground for shifting custody to the respondent. 18. On
these submissions, the following points arise for consideration: (1)
Could the Family Court and High Court have ignored the orders passed in
favour of the appellant in the habeas corpus case on 15-4-1986 and the ex
parte order in the Guardians and Wards Act case dated 23-11-1987 and the
orders of refusal of the High Court or Supreme Court in 1990 to set aside the
latter orders and could the respondent file a fresh case in the Family Court
in 1993 to claim custody, and if so whether there is proof of changed
circumstances between 1990 and 1993 or 1997 warranting the shifting of
custody to the respondent-father, and whether the capacity of the respondent
to give education to the child in USA could alone be sufficient ground to
shift custody? (2) Do
the facts relating to the appellant bringing away the child to India in 1984
contrary to an order of the US Court or not producing the child in the Bombay
High Court have any bearing on the decision of the courts in India while
deciding about the paramount welfare of the child in 1993 or 1997? (3) In
case the respondent is not entitled to permanent custody, is he entitled to
temporary custody or visitation rights? Point 1 19.
From the facts already stated, it is clear that the appellant has an order in
her favour of the High Court of Bombay dated 15-4-1986 giving her the custody
of the child passed while dismissing the writ petition filed by the
respondent seeking a writ of habeas corpus. The appellant then has also an
order in her favour passed again under the Guardians and Wards Act dated
23-11-1987, though in ex parte proceedings, giving her permanent custody of
the child. The appeals preferred by the respondent against the said orders to
the Supreme Court have been dismissed. The order in the proceedings under the
Guardians and Wards Act, 1890 dated 23-11-1987, even though ex parte is
binding on the respondent as it concerns the same subject-matter and operates
as res judicata (Mulla, Civil Procedure Code, Vol. 1, 15th Edn., p. 109).
(See also Sarkar on Evidence, 13th Edn., p. 1128 that judgment by default
creates an estoppel -- quoting Sailendra Narayan Bhanja Deo v. State of
Orissa, MANU/SC/0081/1956 : [1956]1SCR72 20. We
are of the view 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, insofar 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. 21. It
is no doubt true 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 (Rosy Jacob v. Jacob A.
Chakramakkal, MANU/SC/0260/1973 : [1973]3SCR918 .
However, we may state that in respect of orders as to custody already passed
in favour of the appellant the doctrine of res judicata applies and the
Family Court in the present proceedings cannot re-examine the facts which
were formerly adjudicated between the parties on the issue of custody or are
deemed to have been adjudicated. There must be proof of substantial change in
the circumstances presenting a new case before the court. It must be
established that the previous arrangement was not conducive to the child's
welfare or that it has produced unsatisfactory results. Ormerod L.J. pointed
out in S vs. W [(1981) 11 FL1 (82) that "the status quo argument depends for its strength wholly
and entirely on whether the status quo is satisfactory or not. The more
satisfactory the status quo, the stronger the argument for not interfering.
The less satisfactory the status quo, the less one requires before deciding
to change". 22. We
shall next consider the point which solely appealed to the Family Court and
the High Court in the present proceedings namely that the respondent is
financially well off and can take care of the child better and give him
superior education in USA. Lindley, L.J. in McGrath (infants),
Re, (1893) 1Ch 143 : 62 LJ Ch 208 Chat 148 stated that: "... the welfare of the child is not to be measured by
money alone nor by physical comfort only. The word 'welfare' must be taken in
its widest sense. The moral and religious welfare must be considered as well
as its physical well-being. Nor can the ties of affection be
disregarded." 23. As
to the "secondary" nature of material considerations, Hardy Boys,
J. of the New Zealand Court said in Walker v. Walker &
Harrison, 1981 N Z R L 257 (cited by British Law Commission,
Working Paper No. 96, para 6.10): "Welfare is an all-encompassing word. It includes material
welfare, both in the sense of adequacy of resources to provide a pleasant
home and a comfortable standard of living and in the sense of an adequacy of
care to ensure that good health and due personal pride are maintained.
However, while material considerations have their place they are secondary
matters. More important are the stability and the security, the loving and
understanding care and guidance, the warm and compassionate relationships,
that are essential for the full development of the child's own character,
personality and talents." 24.
From the above, it is clear that the 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 the mother's custody. There is
also, no basis, having regard to the oral evidence adduced by the parties,
for holding that the mother is permanently residing at Bombay leaving the
child at Pune. The appellant's categorical evidence that whenever she had to
go to Bombay from Pune, her mother used to come from Bombay to Pune to take
care of the child, leaves no doubt in our mind that the mother is residing
mostly at Pune and goes to Bombay occasionally for very short periods in
connection with certain official duties in her employment. The appellant has
also reiterated before us that she has been residing at Pune and she has a
flat there. As contended by her, the child is a citizen of USA by birth and
he can go to USA in his own right in future, whenever it is so decided.
Further the evidence of the respondent and of his brother that in the event
the child is allowed to go to USA with the respondent, the respondent's
brother and the latter's wife have agreed to proceed to USA, leaving their
three daughters in India (of whom one has been married recently) or
anticipating the migration of their daughters, appears to us to be too
artificial and a make-believe affair rather than real. It appears to us that
the effort on the part of the respondent here is only to impress the Court
that the child will have company of these persons in case the child is
allowed to proceed to USA. This evidence has not appealed to us. 25. In
the result, therefore, we do not find any substantial change in the
circumstances between 1990 and 1993 or 1997 which can justify the shift over
the permanent custody of the child from the appellant to the respondent. Point 2 26.
Much of the argument for the appellant was based upon the fact that the
appellant had, during 1984, removed the child from US to India violating
court orders passed in that country. It is said she has also not produced the
child before the Bombay High Court. It was argued for the respondent that
this conduct disqualified the appellant from having custody of the child. 27.
This point can perhaps be rejected on ground of constructive res judicata
because of the earlier orders as to custody in favour of the appellant but as
the point has been argued and is important we shall decide the same as a
matter of law. Such a question has been considered and decided in various decisions
of courts to which we shall presently refer. 28. The
leading case in this behalf is the one rendered by the Privy Council in 1951,
in McKee v. McKee, 1951 AC 352. In that case, the parties, who were
American citizens, were married in USA in 1933 and lived there till December
1946. But they had separated in December 1940. On 17-12-1941, a decree of
divorce was passed in USA and custody of the child was given to the father
and later varied in favour of the mother. At that stage, the father took away
the child to Canada, In habeas corpus proceedings by the mother, though
initially the decisions of lower courts went against her, the Supreme Court
of Canada gave her custody but the said Court held that the father could not
have the question of custody retried in Canada once the question was
adjudicated in favour of the mother in the USA earlier. On appeal to the
Privy Council, Lord Simonds held that in proceedings relating to custody
before the Canadian Court, the welfare and happiness of the infant was of paramount
consideration and the order of a foreign court in USA as to his custody can
be given due weight in the circumstances of the case, but such an order of a
foreign court was only one of the facts which must be taken into
consideration. It was further held that it was the duty of the Canadian Court
to form an independent judgment on the merits of the matter in regard to the
welfare of the child. The order of the foreign court in US would yield to the
welfare of the child. "Comity of courts demanded not its enforcement,
but its grave consideration". This case arising from Canada which lays
down the law for Canada and U.K. has been consistently followed in latter
cases. This view was reiterated by the House of Lords in J v. C, 1970 AC
668. This is the law also in USA (see 24 American Jurisprudence, para 1001)
and Australia. (See Khamis v. Khamis, (1978) 4 Fam LR 410 (Full
Court) (Aus) .) 29.
However, there is an apparent contradiction between the above view and the
one expressed in H. (infants). Re, (1966) 1 All ER 886 and in E.
(an infant), Re, (1967) 1 All ER 881to the effect that the court in the
country to which the child is removed will send back the child to the country
from which the child has been removed. This apparent conflict was explained
and resolved by the Court of Appeal in 1974 in L. (minors) (wardship :
jurisdiction), Re, (1974)1 All ER 913, CA and in R. (minors) (wardship :
jurisdiction), Re, 1981 2 FLR 416 (CA). It was held by the Court of
Appeal in L., Re12 that the view in McKee v. McKee (Supra) is still the
correct view and that the limited question which arose in the latter
decisions was whether the court in the country to which the child was removed
could conduct (a) a summary inquiry or (b) an elaborate inquiry on the
question of custody. In the case of (a) a summary inquiry, the court would
return custody to the country from which the child was removed unless such
return could be shown to be harmful to the child. In the case of (b) an
elaborate inquiry, the court could go into the merits as to where the
permanent welfare lay and ignore the order of the foreign court or treat the
fact of removal of the child from another country as only one of the
circumstances. The crucial question as to whether the Court (in the country
to which the child is removed) would exercise the summary or elaborate
procedure is to be determined according to the child's welfare. The summary
jurisdiction to return the child is invoked, for example, if the child had
been removed from its native land and removed to another country where,
maybe, his native language is not spoken, or the child gets divorced from the
social customs and contacts to which he has been accustomed, or if its
education in his native land is interrupted and the child is being subjected
to a foreign system of education, -- for these are all acts which could
psychologically disturb the child, Again the summary jurisdiction is
exercised only if the court to which the child has been removed is moved
promptly and quickly, for in that event, the Judge may well be persuaded that
it would be better for the child that those merits should be investigated in
a court in his native country on the expectation that an early decision in
the native country could be in the interests of the child before the child
could develop roots in the country to which he had been removed.
Alternatively, the said court might think of conducting an elaborate inquiry
on merits and have regard to the other facts of the case and the time that
has lapsed after the removal of the child and consider if it would be in the
interests of the child not to have it returned to the country from which it
had been removed. In that event, the unauthorised removal of the child from
the native country would not come in the way of the court in the country to
which the child has been removed, to ignore the removal and independently
consider whether the sending back of the child to its native country would be
in the paramount interests of the child. (See Rayden & Jackson, 15th
Edn., 1988, pp. 1477-79; Bromley, Family law, 7th Edn., 1987.) In R. (minors) (wardship :
jurisdiction), Re it has been firmly held that the concept of forum
convenience has no place in wardship jurisdiction. 30. We
may here state that this Court in Elizabeth Dinshaw v. Arvind M. Dinshaw,
while dealing with a child removed by the father from USA contrary to the
custody orders of the US Court directed that the child be sent back to USA to
the mother not only because of the principle of comity but also because, on
facts, -- which were independently considered -- it was in the interests of
the child to be sent back to the native State. There the removal of the child
by the father and the mother's application in India were within six months.
In that context, this Court referred to H. (infants), Re10 which case, as
pointed out by us above has been explained in L. Re12 as a case where the
Court thought it fit to exercise its summary jurisdiction in the interests of
the child. Bef that as it may, the general principles laid down in McKee v.
McKee (Supra) and J v. C (Supra) and the distinction between summary and
elaborate inquiries as stated in L. (infants), Re12 are today well settled in
UK, Canada, Australia and the USA. The same principles apply in our country.
Therefore nothing precludes the Indian courts from considering the question
on merits, having regard to the delay from 1984 -- even assuming that the
earlier orders passed in India do not operate as constructive res judicata. 31. 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 Guardians 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 1993 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. 32. In
this connection, it is necessary to refer to the Hague Convention of 1980 on
"Civil Aspects of International Child Abduction". 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. Under Article 16 of
the Convention, if in the process, the issue goes before a court, the
Convention prohibits the court from going into the merits of the welfare of
the child. Article 12 requires
the child to be sent back, but if a period of more than one year has lapsed
from the date of removal to the date of commencement of the proceedings
before the court, the child would still be returned unless it is demonstrated
that the child is now settled in its new environment. Article 12 is
subject to Article 13 and
a return could be refused if it would expose the child to physical or
psychological harm or otherwise place the child in an intolerable position or
if the child is quite mature and objects to its return. In England, these
aspects are covered by the Child Abduction and Custody Act, 1985. 33. 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 (Supra) 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 L. Re12. As recently as 1996-1997, it has been held in P (A
minor) (Child Abduction: Non-Convention Country), Re, (1996) 3 FCR 233,
CA by Ward, L.J. 1996 CLYB 165 that in deciding whether to order
the return of a child who has been abducted from his or her country of
habitual residence -- which was not a party to the Hague Convention, 1980, --
the courts' overriding consideration must be the child's welfare. There is no
need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the child's 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, L.J. (CA) (quoted in
Current Law, August 1997, p. 13]. This answers the contention relating to
removal of the child from USA. 34.
Again as stated earlier, 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. 35. For
the aforesaid reasons, the contention of the respondent based on violation of
the earlier orders of the US courts or of the Bombay High Court for
production of the child, is rejected. Point 3 36.
Though we have held that the respondent is not entitled to permanent custody
of the child, it is necessary to consider whether the respondent is to be
given temporary custody or visitation rights. 37. 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 ex parte 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. 38. 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 to India, he could, in advance of at least 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. The appellant shall take all such steps to comply with the above
visitation rights of the respondent. It will also be open to the parties to
move this Court for any other directions in regard to these visitation
rights. 39.
Appeal of the appellant-mother against order passed in the application for
custody filed by the respondent before the Family Court, is allowed as stated
above and the respondent's application for custody of the child is dismissed
subject however to the visitation rights stated above. Appeal against the
order in the petition for declaring the marriage of the appellant and the
respondent null and void is dismissed as not pressed in view of the decree of
divorce, already passed. The bailable warrants issued against the appellant
are directed to be withdrawn, if they are subsisting.
|
|
|
|
|
very useful
ReplyDelete