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PETITIONER: SMT. SURINDAR KAUR SANDHU

       Vs.

RESPONDENT: HARBAX SINGH SANDHU & ANR.

DATE OF JUDGMENT11/04/1984

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) MUKHARJI, SABYASACHI (J)

CITATION:  1984 AIR 1224            1984 SCR  (3) 422  1984 SCC  (3) 698        1984 SCALE  (1)616

ACT:      Hindu Minority  and Guardianship  Act, 1956  Section 6- Interpretation of-Custody  of the  child. Conflict  of Laws- Jurisdiction of  the Court to decide the question of custody of a  minor child who is a British citizen while the parents are Indian citizens.

HEADNOTE:      Appellant and  Respondent No.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. Soon  thereafter,  their  relationship  came  under  a strain with  the result Respondent 1 was trying to negotiate with a  hitman to  have the appellant run over by a car. The Berkshire  Police   got  scent   of  it   resulting  in  the Respondent’s conviction  and sentence  for a period of three years.  Ironically   the  appellant   wife  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. On January 31, 1983, while the wife was away at work, Respondent No. 1 removed the boy from England and  brought him  to India.  On the  same date,  the appellant-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.  This order  was confirmed on July 22, 1983.      In the  meantime the  appellant came to India in April, 1983 and  on 5.5.1983  filed a  petition under section 97 of the Code  of Criminal  Procedure in the Court of the learned Judicial Magistrate  first class  Jagraon  praying  for  the custody of  the child.  The Respondent  No. 1  contested and took an objection that under section 6 of the Hindu Minority and Guardianship  Act, 1956  he was  the natural guardian of the minor  boy. The contention was accepted and the petition was dismissed.  The appellant went back to England to resume her work and obtained the confirmation order dated 22.7.1983 referred to above. Armed with the said order she returned to India and  filed a writ Petition in the High Court of Punjab and Haryana.  The Writ Petition was dismissed on the grounds inter  alia  that  her  status  in  England  is  that  of  a

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foreigner, factory  worker and a wife living separately from the husband  and having  no relatives  and as such the child would have  to live  in lonely  and dismal  surroundings  in England, while  it would  grow  in  an  atmosphere  of  self confidence and  self respect,  if it  was permitted  to live with its father and grand parents: 423      Hence the  appeal after  obtaining special leave of the Court.      Allowing the appeal, the Court, ^      HELD:  1.   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 the Court the  boy, from  his own  point of view, ought to be in the custody of the mother. [427A-B]      2:1 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  forum- 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 offsprings 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 place 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. [427-CG]      2:2 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  England Court  had jurisdiction to decide the question of his custody.[427B-C]      International Shoe  Company v.  State of Washington, 90 L.ED 95 [1945] quoted with approval.      3:1 In  the instance  case; (i)  The welfare of the boy does not require that he should live with his father or with the grand  parents; (ii)  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, and (iii) 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

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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, the 424 affluence of  the husband’s  parents cannot be regarded as 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 it will not be less  for the  welfare of the minor if the lived with his mother. He  was whisked  away from her and it cannot be said that there are any circumstance 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. [426E-H]      3:2 It is the duty and function of the court 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. [427H]      (The court  directed the  custody of  the child  to the mother forthwith and awarded cost of Rs. 3000) [428B]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 183 of 1984.      Appeal by  Special leave  from the  Judgment and  order dated the  26th August,  1983 of the Punjab and Haryana High Court in Cr. Writ Petition No. 392 of 1983.      C.M. Nayar and Vijay Jhani for the Appellant.      Puran Chand,  Mrs. Naresh Bakshi and Miss Kailash Mehta for the Respondents      The Judgment of the Court was delivered by      CHANDRACHUD  C.   J.,:  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.      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 hitman  to have  the wife  run over by a car. The husband was convicted and sentenced 425 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.      On January  31, 1983,  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

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custody of the minor boy to the wife or her agent forthwith.      The wife  came to  India in  April 1983. On May 5, 1983 she filed  a petition  under  section  97  of  the  Code  of Criminal Procedure  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.      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.      The learned  single Judge  of the  High Court who dealt with the  petition made  an excellent  effort to bring about 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 426 were unable to resolve their differences.      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.      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

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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 427 to take reasonable care of the boy.      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 to-day, the boy, from his  own point  of view,  ought to be in the custody of the mother.      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  forum-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 offsprings 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 (1) 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. 428      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

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during the course of this day.      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.      order accordingly, S.R.                                         Appeal allowed. 429