Equivalent Citation: AIR1984SC1224, 1984(1)Crimes928(SC), 1984(1)SCALE616,
(1984)3SCC698, [1984]3SCR422
IN THE
SUPREME COURT OF INDIA
Criminal
Appeal No. 183 of 1984
Decided
On: 11.04.1984
Appellants:Smt. Surinder Kaur Sandhu
Vs.
Respondent: Harbax Singh
Sandhu and Anr.
Hon'ble
Judges:
Y. V. Chandrachud, C.J.
and Sabyasachi Mukherjee, J.
Counsels:
For Appellant/Petitioner/Plaintiff: C.M. Nayar and Vijay Jhanji, Adv.
For
Respondents/Defendant: Puran Chand, Naresh
Bakshi and Kailash
Mehta, Adv.
Subject: Family
Acts/Rules/Orders:
Hindu Minority and Guardianship Act, 1956 - Section 6; Code of Criminal Procedure (CrPC) - Section 97
Prior
History:
Appeal by
Special leave From the Judgement and Order dated the 26th August, 1983 of the
Punjab and Haryana High Court in Criminal Writ Petition No.392 of 1983
Citing
Reference:
1
Case Note:
Family - Custody of Child - Section 6 of Hindu Minority and Guardianship Act,
1956 - Present appeal filed against order whereby rejected petition for custody
of minor child in favour of appellant - Held, minor child is about 8 years of
age and loving care of mother ought not to be denied to him - Father made of
coarse stuff - Mother earns income which is certainly not large by English
standards, but is not so low as not to enable her to take reasonable care of
boy - Section 6 of Act constitutes father as natural guardian of minor son -
But said provision cannot supersede paramount consideration as to what is
conducive to welfare of minor - As matters presented before Court ought to be
in custody of mother - Spouses had set up their matrimonial home in England
where wife was working as clerk and husband as bus driver - Boy is British
citizen having been born in England and he holds British passport - Therefore
English Court had jurisdiction to decide question of custody of minor child -
Therefore set aside impugned judgment and directed that custody of child shall
be handed over to appellant/mother
JUDGMENT
Y.V.
Chandrachud, C.J.
1. The
appellant, Surinder Kaur Sandhu, is the wife of respondent 1, Harbax Singh
Sandhu. Respondent 2 is the father of respondent 1. Appellant and respondent 1
were married in 1975 at Bodni Kalan, District Faridkot, Punjab, according to
Sikh rites. Soon after the marriage they left for England, where a boy named
Pritpal Singh was born to them on October 24, 1976.
2. Within
a short period after the birth of the boy, the relationship between the spouses
came under a strain resulting in a serious episode. The husband was trapped by
the Berkshire Police who got the scent that he was negotiating with a hit man
to have the wife run over by a car. The husband was convicted and sentenced to
a term of three years for that offence. Ironically, it was the wife who
intervened and succeeded in obtaining a probation order for the man who had
attempted to procure her murder. The husband was released on probation on
February 4, 1982. The period of probation expired on December 24, 1982.
3. On
January 31, l983, while the wife was away at work, the husband removed the boy
from England and brought him to India. On the same date, the wife obtained an
order under Section 41 of the Supreme Court Act, 1981 under which the boy
became the Ward of the Court with effect from that date. That order was
confirmed on July 22, 1983 by Mrs. Justice Booth of the High Court of Justice
(Family Division). By the said order, the husband was directed to hand over the
custody of the minor boy to the wife or her agent forthwith.
4. The
wife came to India in April 1983. On May 5, 1983 she filed a petition under
Section 97 of the CrPC in the Court of the learned Judicial Magistrate, First
Class, Jagraon. She asked for the custody of her son, contending that he was in
the illegal custody of the respondents. Section 97 authorises the Magistrate to direct a search to be made for
persons wrongfully confined and, on their being found, to be produced in the
Court in order to facilitate the passing of such order as the circumstances of
the case may require. The respondents relied upon Section 6 of the Hindu Minority and Guardianship Act, 1956, and opposed the
petition on the ground that Respondent 1 was the natural guardian of the minor
boy. Accepting that contention, the learned Magistrate dismissed the petition,
leaving the question of the custody of the child to be decided in an
appropriate proceeding.
5. The
wife then went back to England to resume her work and obtained the order dated
July 22, 1983 to which we have already referred. She came back to India once
again, this time armed with the aforesaid order of the English High Court. She
then filed the present writ petition in the High Court of Punjab and Haryana,
asking for the production and custody of her minor son.
6. The
learned single Judge of the High Court who dealt with the petition made an
excellent effort to bring about a rapprochement between the spouses but, he did
not succeed. He questioned the boy more than once and he even presided the
spouses to live together for a couple of days in the house of the inspector
General of Prisons, Haryana. The spouses reported back to him that they were
unable to resolve their differences.
7. The
learned Judge dismissed the wife's petition on the grounds, inter alia, that
her status in England is that of a foreigner, a factory worker and a wife
living separately from the husband: that she had no relatives in England; and
that, the child would have to live in lonely and dismal surroundings in
England. On the other hand, according to the learned Judge, the father had gone
through a traumatic experience of a conviction on a criminal charge; that he
was back home in an atmosphere which welcomed him; that his parents were in
affluent circumstances; and that, the child would grow in an atmosphere of
self-confidence and self-respect if he was permitted to live with them.
8. Some
of these circumstances mentioned by the learned Judge are not beside the point
but, their comparative assessment is difficult to accept as made. For example,
the 'traumatic experience of a conviction on a criminal charge' is not a factor
in favour of the father, especially when his conduct following immediately upon
his release on probation shows that the experience has not chastened him. On
the whole, we are unable to agree that the welfare of the boy requires that he
should live with his father or with the grand-parents. The father is a man
without a character who offered solicitation to the commission of his wife's murder.
The wife obtained an order of probation for him but, he abused her magnanimity
by running away with the boy soon after the probationary period was over Even
in that act, he displayed a singular lack of respect for law by obtaining a
duplicate passport for the boy on an untrue representation that the original
passport was lost. The original passport was, to his knowledge, in the keeping,
of his wife. In this background, we do not regard the affluence of the
husband's parents to be a circumstance of such overwhelming importance as to
tilt the balance in favour of the father on the question of what is truly for
the welfare of the minor. At any rate, we are unable to agree that it will be
less for the welfare of the minor if he lived with his mother. He was whisked
away from her and the question is whether, there are any circumstances to
support the view that the new environment in which he is wrongfully brought is
more conducive to his welfare. He is about 8 years of age and the loving care
of the mother ought not to be denied to him. The father is made of coarse
stuff. The mother earns an income of 100 a week, which is certainly not large
by English standards, but is not so low as not to enable her to take reasonable
care of the boy.
9.
Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the
father as the natural guardian of a minor son. But that provision cannot
supersede the paramount consideration as to what is conducive to the welfare of
the minor. As the matters are presented to us today, the boy, from his own
point of view, ought to be in the custody of the mother.
10. We may add that the spouses had set
up their matrimonial home in England where the wife was working as a clerk and
the husband as a bus driver. The boy is a British citizen, having been born in
England, and he holds a British passport. It cannot be controverted that, in
these circumstances, the English Court had jurisdiction to decide the question
of his custody. The modern theory of Conflict of Laws recognises and, in any
event, prefers the jurisdiction of the State which has the most intimate
contact with the issues arising in the case. Jurisdiction is not attracted by
the operation or creation of fortuitous circumstances such as the circumstance
as to where the child, whose custody is in issue, is brought or for the time
being lodged. To allow the assumption of jurisdiction by another State in such
circumstances will only result in encouraging form shopping. Ordinarily,
jurisdiction must follow upon functional lines. That is to say, for example,
that in matters relating to matrimony and custody, the law of that place must
govern which has the closest concern with the well-being of the spouses and the
welfare of the off springs of marriage. The spouses in this case had made
England their home where this boy was born to them. The father cannot deprive
the English Court of its jurisdiction to decide upon his custody by removing
him to India, not in the normal movement of the matrimonial home but, by an act
which was gravely detrimental to the peace of that home. The fact that the
matrimonial home of the spouses was in England, establishes sufficient contacts
or ties with that State in order to make it reasonable and just for the Courts
of that state to assume jurisdiction to enforce obligations which were incurred
therein by the spouses. (See International Shoe Company v. State of Washington, 90 L. Ed. 95 which was not a matrimonial case but
which is regarded as the fountainhead of the subsequent developments of
jurisdictional issues like the one involved in the instant case.) It is our
duty and function to protect the wife against the burden of litigating in an
inconvenient forum which she and her husband had left voluntarily in order to
make their living in England, where they gave birth to this unfortunate boy.
11. For
these reasons, we set aside the judgment of the High Court and direct that the
custody of the child shall be handed over to the appellant-mother. That shall
be done during the course of this day.
12. The
High Court has referred to the evidence showing that the annual income of the
father's family is in the range of Rs. 90,000. That would justify an order
directing the respondents to pay a sum of Rs. 3,000 (three thousand) to the
appellant for her costs of this appeal.
13. Order
accordingly.
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