Mrs. Elizabeth Dinshaw Vs. Arvand M.
Dinshaw & ANR [1986] INSC 231 (11 November 1986)
ERADI, V. BALAKRISHNA (J) ERADI, V.
BALAKRISHNA (J) OZA, G.L. (J)
CITATION: 1987 AIR 3 1987 SCR (1) 175 1987
SCC (1) 42 JT 1986 795 1986 SCALE (2)745
ACT:
Constitution of India, 1950--Article
32--Divorce in USA--Minor child--Custody given to mother and visitation rights
to father by American Court--Father abducted the child and brought to India
against express orders of the American Court--Orders of proper foreign Court--Should
be regarded-Child restored to mother to be taken back to U.S.A.
HEADNOTE:
The petitioner, a citizen of the United
States of America residing Michigan, was married to the first respondent, an
Indian citizen, who after marriage settled down in the United States and
secured employment. A male child was born to the couple in America. Difference
arose between them and the petitioner along with her son took up separate
residence.
She tiled a petition for divorce in the
Circuit Court for the country of saginaw, Michigan which granted a decree
holding that there had been a breakdown in the marriage relationship and
declared tile marriage as dissolved. The decree also directed that the
petitioner slab hove the care,. custody and control of the minor child until he
reaches the age of 18 years. The first respondent, the father was given
visitation rights by the decree. On the abject of travel with the minor child
to any place outside the United States, it was directed that only on a petition
the Court shall make a determination as to whether such travel is in the best
interest of the minor child, and what conditions shall he set-forth to ensure
the child's return.
The Court also directed that the lint
respondent shall notify the Office of. the Friend of the Court promptly
concerning any changes in his address.
Taking advantage of the weekend visitation
rights granted by the said decree, the first respondent picked up the child
from his school and secretly left America for India an January 11th, 1986. He
had not intimated the Court about his intention to take the child out of its
jurisdiction and outside the country nor had he given the slightest indication
to the petitioner about his intention to leave America permanently for India.
Immediately before leaving for India, the first respondent sold away his
immovable property and it was only from the Airport that he posted a letter
tendering his resignation from his Job.
176 Coming to know that the minor child had
not been returned to the day care centre by the first respondent, the
petitioner moved the Circuit Court complaining against the violation by the
first respondent of the terms of the Court's decree. The Court issued a warrant
of arrest against the first respondent an the ground of unlawful taking and retaining
the child outside the State, followed by the issue of a Federal warrant of
arrest on the ground of unlawful flight to avoid prosecution. Since the first
respondent had already come over to India with the minor child these warrants
could not he executed in the United States. The Consular Officer, American
Consulate General, Bombay, visited the residence of the first respondent's
parents in Pune but the minor child was not present there and the grandparents
reported that the child and his father had gone North, possibly to Kashmir and
that they were not aware of their exact whereabouts. Thereafter, the petitioner
flied a petition in this Court seeking the issuance of a writ of Habeas Corpus
directing the respondents to produce in Court her minor child and to hand over
custody to her as the person entitled to it under the order of a competent
foreign Court.
In response to the notice issued by this
Court, the first respondent appeared and produced the child in Court and filed
a counter-affidavit explaining his conduct the explanation tendered by him was
that his father was seriously ill and he wanted his father to see the child. It
was further submitted that the child prefers to stay With him in Pune and hence
he was admitted in a School there and that it will be in the interest of the
child that he should he allowed to reside with him in India.
Disposing of the petition,
HELD: 1. Whenever a question arises before
Court pertaining to the custody of a minor child, the matter is to he decided
not on consideration of the legal rights of parties but on the sole and
predominant criterion of what would best serve the interest and welfare of the
minor. [181F]
2. It is the duty of all Courts in all
countries to do all they can to ensure that the wrongdoer does not gain an
advantage by his wrongdoing. The Courts in all countries ought to be careful
not to do anything to encourage the tendency of sudden and unauthorised removal
of children from one country to another. This substitution of self-help for due
process of law in this field can only harm the interests of the wards
generally, and a judge should pay due regard to the orders of the proper
foreign Court unless he is satisfied beyond reasonable doubt that to do so
would inflict serious harm on the child. [183B-D] 177 Re H. (infants), 1966 (I)
All E.R. 886, relied upon.
3. The conduct of the first respondent in
taking the child from the custody of the person to whom it had been entrusted
by the Court was undoubtedly most repprehensible.
The explanation sought to be given, namely,
his father's illness, is far from convincing and does not in any way justify
such gross violation and contempt of the order of the Circuit Court in
Michigan. [181E]
4. The child's presence in India is the
result of an illegal act of abduction and the father who is guilty of the said
act cannot claim any advantage by stating that he has already put the child in
some school. The conduct of the father has not been such as to inspire
confidence in the Court that he is a fit and suitable person to be entrusted
with the custody and guardianship of the child. [182C]
5. It will be in the best interest and
welfare of the child that he should go back to the United States of AmeriCa and
continue his education there under the custody and guardianship of the mother
to whom such custody and guardianship have been entrusted by a competent Court
in that country. The petitioner who is the mother, it full of genuine love and
affection for the child and she can be safely trusted to look after him,
educate him, and attend in every possible way to his proper up-bringing. The
child has not taken root in this country and he is still accustomed and
acclamatized to the place of his origin in the United States of America. [181 H182A,
B]
6. The first respondent has tendered before
this Court an unconditional apology. The proper step to be taken by him is to
tender such an apology to the Court whose order he has violated. He has been
found to be in contempt of the Circuit Court, Saginaw, Michigan for violation
of its order and that Court has consequently terminated the visitation rights
conferred on the first respondent. He may move that Court for modification of
its order on tendering his unconditional apology to that Court. The petitioner should
cooperate with the respondent in the matter of enabling him to have restricted
visitation rights in America and should also extend her cooperation for the
withdrawal of the warrants of arrest outstanding against the first respondent.
[I83F-184C]
ORIGINAL JURISDICTION: Writ Petition (Crl.)
No. 270 of 1986 Under Article 32 of the Constitution of India.
178 Mrs. K. Hingorani for the Petitioner.
Kapil Sibal, Karanjawala, Mrs. Karanjawala
and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by
BALAKRISHNA ERADI, J. Immediately on conclusion of the hearing of arguments in
the above Writ Petition on June 11, 1986, having regard to the urgency of the
matter, we passed the following order:-"We allow the Writ Petition and direct
that the minor boy, Dustan be restored forthwith to the custody of the
petitioner i.e. the mother with liberty to the petitioner to take him to the
United States. The child will be a ward of the concerned Court in Michigan and
it will be open to the father, first respondent herein to move that Court for a
review of the custody of the child, if he is so advised. Detailed reasons will
follow. The passport of the child which is in deposit with the Registrar of
this Court will be returned to the petitioner i.e. the mother of the child
today itself. The concerned authorities of the Govt. of India will afford all
facilities to the mother to take the child back to the United States pursuant
to the order passed by this Court." We now proceed to state in this judgment
our reasons in support of the order.
The petitioner, Mrs. Elizabeth Dinshaw is a
citizen of the United States of America residing in the State of Michigan. She
is employed as a case worker for the State of Michigan in Genesee County
Department of Social Services, Flint Michigan. The first respondent, Mr. Arvand
M. Dinshaw, who is an Indian citizen was a student at Northern Michigan
University in 1971. During that period the petitioner was also studying there.
What started as a friendship between them on the campus later developed into
love and the petitioner was married to the first respondent in a civil marriage
before a legal magistrate in Negaunee, Michigan on February 26, 1972. The first
respondent thereafter settled down in the United States more or less on a
permanent basis having secured employment as an Accountant for the Controller's
Office in Genesee County. and having obtained a permanent 179 immigration Visa.
A male child, Dustan, was born to the couple on August 30, 1978 in Rochester,
Michigan, United States of America where they were having their marital home.
Unfortunately, differences arose between the
two spouses late in the year 1980 and on December 23, 1980, the petitioner
along with her son took up separate residence in a women's shelter in Saginaw,
Michigan. She filed a petition for divorce on January 2, 1981 in the Circuit
Court for the County of Saginaw, Michigan. By a decree dated April 23, 1982,
the Circuit Court held that it had been established that there had been a
breakdown in the marriage relationship to the extent that the objects of
matrimony had been destroyed and there remained no reasonable likelihood that
the marriage could be preserved and hence it declared the marriage as dissolved
and granted a divorce to the petitioner as prayed for. By the same decree, it
was directed that the petitioner shall have the care, custody and control of
the minor child of the parties until he reaches the age of 18 years or until
the further orders of that Court. The first respondent, the father was given
visitation rights by the decree and it was provided that he shall'have
visitation with the minor child from approximately 5 P.M. to 8 P.M. on the
Wednesday of every week during which he does not have a weekend visitation. It
was further ordered that the father shall have visitation with the minor child
on alternate weekends from 5 P.M. on Friday until the following Monday morning
when he should return the child to his day care centre. On the subject of
travel with the minor child to any place outside the United States, it was
specifically directed in the decree as follows:-"IT IS FURTHER ORDERED AND
ADJUDGED THAT should the Defendant ARVAND M. DINSHAW. wish to travel with the
minor child outside the territorial limits of the United States. he shall bring
a petition before this Court.
setting forth the conditions under which he
intends to leave the country with the minor child. The court shall then make a
determination as to whether such travel is in the best interests of the minor
child. and what conditions shall be set forth to ensure the child's
return." Taking advantage of the weekend visitation rights granted to him
by the above decree, the first respondent picked up Dustan from his school on
January 10, 1986 and secretly left the United States of America for India on
January 11, 1986. at about 8.30 in the night. He 180 had not intimated the
Court about his intention to take the child out of its jurisdiction and outside
country nor had he given the slightest indication to the petitioner about.his
intention to leave the United States of America permanently for India. It may
be stated that immediately before leaving for India, the first respondent had
sold away the immovable property consisting of a house and its premises owned
by him in Seymour, Lindan, Michigan, where he had been residing and it was only
from the Airport that he posted a letter tendering his resigation from his job
as Accountant in the Country. In this context it is significant to recall that
the decree of the Circuit Court contained the following directions: .
"IT IS FURTHER ORDERED AND ADJUDGED that
the Defendant shall notify the Office of the Friend of the Court promptly
concerning any changes in his address. The Court further finds that the
Defendant is presently residing at 14155 Seymour, Lindan, Michigan." It
was only late in the day on Monday, January 13., 1986 that the petitioner came
to know that the minor child, Dustan had not been returned to the day care
centre by the first respondent. She immediately moved the Michigan Circuit
Court complaining against the violation by the first respondent of the terms of
its decree. A warrant of arrest was issued by the Michigan Circuit Court
against the first respondent on January 16, 1986 on the ground of unlawful
taking and retaining the child outside the State. This was later followed by
the issue of a Federal warrant of arrest against the first respondent on the
January 28, 1986 on the ground of unlawful flight to avoid prosecution. Since the
first respondent had already come over to India with the minor child, these
warrants could not be executed in .the United States. The first respondent has
his ancestral home in Pune where his parents are residing. The petitioner made
frantic efforts through American Consulate General at Bombay to trace out the
whereabouts of Dustan. She received a reply that the Consular Officer, American
Consulate General, Bombay travelled to Pune on Friday, March 7, 1986 and though
she was able to visit the residence of the first respondent's parents and she
spoke with them, the minor child, Dustan was not present there and the
grand-parents reportedthat Dustan and his father had gone North, possible, to
Kashmir and that they were not aware of the exact whereabouts of Dustan and the
first respondent. The petitioner finding herself totally helpless to recover
back the custody of her minor child, whom she had brought up for more than 7
181 years, thereafter arranged to have this petition tiled in this Court seeking
the issuance of writ of Habeas Corpus directing the respondents to produce in
Court her minor child, Dustan and to handover his custody to her as the person
entitled to his custody under the order of a competent foreign Court.
In response to the notice issued by this
Court directing production of the child before the Court, the first respondent
appeared and produced the child in Court. He has filed a counter-affidavit but
significantly there is absolutely no satisfactory explanation given there for
his conduct in abducting the child from America without seeking permission of
the Court in that country of which the minor child, was ward. His only
explanation is that his father was seriously ill and he wanted that his father
in his ailing condition to see Dustan. He has further stated that his son
Dustan has told him on an enquiry that he would prefer to stay with him in Pune
and hence he had got Dustan admitted in St. Helena's School in Standard III.
According to him he had not deliberately done anything wrong in bringing Dustan
with him from the United States and that now the minor child is well settled
here in India and it will be in the interest of the child that he should be
allowed to reside with him in India as per the child's desire.
The conduct of the first respondent in taking
the child from the custody of the person to whom it had been entrusted by the
Court was undoubtedly most repprehensible. The explanation sought to be given
by him namely, his father's illness, is far from convincing and does not in any
way justify such gross violation and contempt of the order of the Circuit Court
in Michigan.
Whenever a question arises before Court
pertaining to the custody of a minor child, the matter is to be decided not on
considerations of the legal rights of parties but on the sole and predominant
criterion of what would best serve the interest and welfare of the minor. We
have twice interviewed Dustan in our Chambers and talked with him. We found him
to be too tender in age and totally immature to be able to form any independent
opinion of his own as to which parent he should stay with. The child is an
American citizen. Excepting for the last few months that have elapsed since his
being brought to India by the process of illegal abduction by the father, he
has spent the rest of his life in the United States of America and he was doing
well in school there. In our considered opinion it will be in the best
interests and welfare of Dustan that he should go back to the United States of
America and continue his education there under the custody and guar182 dianship
of the mother to whom such custody and guardianship have been entrusted by a
competent Court in that country. We are also satisfied that the petitioner who
is the mother, is full of genuine love and affection for the child and she can
be safely trusted to lookafter him, educate him and attend in every possible
way to his proper upbringing. The child has not taken root in this country and
he is still accustomed and acclimatized to the conditions and environments
obtaining in the place of his origin in the United States of America. The
child's presence in India is the result of an illegal act of abduction and the
father who is guilty of the said act cannot claim any advantage by stating that
he has already put the child to some school in Pune. The conduct of the father
has not been such as to inspire confidence in us that he is a fit and suitable
person to be entrusted with the custody and guardianship of the child for the
present.
In Re. H. (infants) [1966] 1 All E.R. 886,
the Court of Appeal in England had occasion to consider a somewhat similar
question. That case concerned the abduction to England of two minor boys who
were American citizens. The father was a natural-born American citizen and the
mother, though of Scottish origin, had been resident for 20 years in the United
States of America. They were divorced in 1953 by a decree in Mexico, which
embodied provisions entrusting the custody of the two bOys to the mother with
liberal access to the father. By an amendment made in that order in December,
1964, a provisions was incorporated that the boys should reside at all times in
the State of New York and should at all times be under the control and
jurisdiction of the State of New York. In March, 1965, the mother removed the
boys to England, without having obtained the approval of the New York court,
and without having consulted the father; she purchased a house in England with
the intention of remaining there permanently and of cutting off all contacts
with the father. She ignored an order made in June, 1965, by the Supreme Court
of New York State to return the boys there. On a motion on notice given by the
father in the Chancery Division of the Court in England, the trial' judge Cross,
J.
directed that since the children were
American children and the American Court was the proper Court to decide the
issue of custody, and as it was the duty of courts in all countries to see that
a parent doing wrong by removing children out of their country did not gain any
advantage by his or her wrongdoing, the Court without going into the merits of
the question as to where and with whom the children should live, would order
that the children should go back to America. In the appeal filed against the
said judgment in the Court of Appeal, Willmer 183 L.J. while dismissing the
appeal extracted with approval the following passage from the judgment of
Cross, J. :-"The sudden and unauthorised removal of children from one
country to another is far too frequent nowadays, and as it seems to me, it is
the duty of all courts in all countries to do all they can to ensure that the
wrongdoer does not gain an advantage by his wrongdoing.
The Courts in all countries ought, as I see
it, to be careful not to do anything to 'encourage this tendency. This
substitution of self-help for due process of law in this field can only harm
the interests of wards generally, and a judge should, as I see it, pay regard
to the orders of the proper foreign Court unless he is satisfied beyond
reasonable doubt that to do so would inflict serious harm on the child."
With respect we are in complete agreement with the aforesaid enunciation of the
principles of law to be applied by the Courts in situations such as this.
As already observed by us, quite
independently of this consideration we have come to the firm conclusion that it
will be in the best interests of the minor child that he should go back with
his mother to the :United States of America and continue there as a ward of the
concerned Court having jurisdiction in the State of Michigan. The first
respondent has tendered before this Court in an affidavit filed by him an
unconditional apology for having illegally brought Dustan over to India from
the United States in violation of the order of the competent Court in that country.
The proper step to be taken by him is to tender such an apology to the Court
whose order he has violated. It was brought to our notice that by an order
passed by the Circuit Court, Saginaw, Michigan on February 11, 1986, the first
respondent has been found to be in contempt of that Court for violation of its
order and the Court has consequently terminated the visitation rights which had
been conferred on the first respondent by the decree dated April 23, 1982. It
will be open to the first respondent, if he is so advised, to move the Saginaw
County Circuit Court in the State of Michigan for modification of this order on
tendering his unconditional apology to that Court, and if he is able to satisfy
that Court that there is genuine 184 contrition and regret on his part for the
wrong that he has done, we have no doubt that the Circuit Court will take a
lenient view and pass appropriate orders working out justice between the
parties keeping in mind the important aspect that it will not be in the
interest of the minor child to completely alienate him from his father for-whom
the child has developed genuine affection. We have also no doubt that the
petitioner will not take a vindictive attitude but would forget and forgive
what has happened in the past and cooperate with the father in the matter of
enabling him to have restricted visitation rights in America with all
necessary, proper and adequate safeguards and that the petitioner would also
extend her cooperation for the withdrawal of the warrants of arrest outstanding
against the first respondent in case he approaches her with such a request.
For the reasons stated above, the Writ
Petition is disposed of with the directions issued by our order dated June 11,
1986.
A.P.J. Petition disposed of.
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