Summary
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 alongwith 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 grant- ed 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 indica- tion 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 re- turned 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 re- taining the child outside the State, followed by the issue of a Federal warrant of arrest on the ground of unlaw- ful 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, visit- ed the residence of the first respondent's parents in Pune but the minor child was not present there and the grand- parents 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 serious- ly 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 per- taining 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 satis- fied 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 guard- ianship have been entrusted by a competent Court in that country. The petitioner who is the mother, it full of genu- ine 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 H- 182A, 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 re- stricted 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]See the full content of this document
Extract
Mrs. Elizabeth Dinshaw VS. Arvand M. Dinshaw And Anr.
PETITIONER: MRS. ELIZABETH DINSHAW Vs.RESPONDENT: ARVAND M. DINSHAW AND ANR.DATE OF JUDGMENT11/11/1986BENCH: ERADI, V. BALAKRISHNA (J)BENCH: 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)745ACT: Constitution of India, 1950--Article 32--Divorce inUSA--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.JUDGMENT: 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 Ra...
See the full content of this document