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PETITIONER: DHANWANTI JOSHI

       Vs.

RESPONDENT: MADHAV UNDE

DATE OF JUDGMENT:       04/11/1997

BENCH: S.B. MAJMUDAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                THE 4TH DAY OF NOVEMBER, 1997 Present;               Hon’ble Mr.Justice S.B.Majmudar               Hon’ble Mr.Justice M.Jagannadha Rao In-person for the appellant Kailesh Vasdev, Adv. for the Respondent                       J U D G M E N T The following Judgment of the Court was delivered: M. JAGANNADHA RAO, J.      These two  appeals are connected and can be disposed of together C.A.No  5517 of  1997 arises  out  of  order  dated 10.6.1997 and  4.7.1997 passed  by the  High Court in appeal against M.J.Petition  No. 985 of 1985 filed by the appellant in Civil  Court which  was transferred  to the Family Court. C.A. 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 1.212.1995 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 99 of 1995 while passing orders on 4.7.1997, it was also stated by the High Court that appellant has no case on merits.      The facts leading to the appeals are as follows:-      The respondent  Mr.Madhav Under  married the  appellant (who was  then in  U.S.A) on  11.6.82  at  Omaha,  State  of Nebraska in  the U.S.A..  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 exparte divorce order against Bhagyawanti in the trial  court   at  Oakland  in  the  State  of  Michigan  on 25.10.1997 allegedly  by way  of  misrepresentation.  (Later Bhagyawanti moved  that Court  for vacation  of that order). The said  Bhagyawanti also  filed petition  No.101/81 in the District Court,  Nagpur and claimed that the decree obtained by respondent in USA was void and based on misrepresentation of facts  and she  claimed for  divorce maintenance  and the reliefs.   She succeeded  in that  case and  a fresh divorce

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decree was  passed by  the Nagpur  Court on  11.6.84 relying upon Smt.  Satya vs.  Tej Singh  [1975 (1)  SCC 120].   That would mean  that the  Indian Court  held that the US divorce decree  dt.   25.10.1997  was   not  binding   on  the  said Bhagyawanti.      The appellant  lived with the respondents in USA for 10 months after  her marriage  on 11.6.1982.   On  15.3.1983, a male child was borne to them, is USA and was named Abhijeet. Due  to   certain  compelling   circumstances,  the   mother (appellant) and the child left the respondent on 20.4.83 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 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.      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 exparte  on 23.9.1983.   On 20.2.84 the child reached India with  the appellant  s-mother.   The  respondent  then obtained an order on 11.4.1984 exparte containing directions as to visitation rights in his favour.  Late on, 30.4.84 the Court passed  an order  exparte modifying  the earlier order unto 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  bearing as  to be  held  on  all issues.   On 28.4.86,  the US  Court passed on exparte order granting ’permanent custody’ to the respondent-husband.      In the  meanwhile, the  appellant proceeded from USA to Australia and  then reached  India and  joined her son.  She then filed M.J. Petition No. 985 of 1985 in the Civil Court, Bombay for  a declaration  that her marriage with 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 23.9.83 was not binding on her and for injunction against respondent from  removing the  child from  her.    That  the divorce  decree  obtained  on  25.10.77  by  the  respondent against Bhagyawanti  did not  bind Bhagyawanti  has now been declared in  the fresh  divorce decree  passed by the Indian Court on 11.6.84 as stated above:      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 15.4.86 and custody was granted to the appellant by the High ’court.  The Court said In a elaborate order);      "Therefore, taking  the totally  of      circumstances  into  consideration,      we  find   allowed  to  retain  the      custody for  the present and at the      stage.    The  interim  Custody  of      Abhijeet  be  handed  over  to  the      mother Dhanwanti  forthwith.    The      petitioner-father-Madhav  will  the      right  of  visiting  between  4.000      p.m. and 6 p.m. every day.  Subject      to the above, rule is discharged. (The permanent  custody order  of UDS Court dated 25.4.86 in favour of  the husband is after this dated.  B Social leaves petition No. 1290 of 1986 filled by respondent was dismissed

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on 8.5.1986.      We come  to the  next stage  of proceedings  under  the Guardian and  wards Act,  and eye 13 of the Hindu Minority & 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  &  Lawful guardian of  the person/property  of the child or 20.8.1986. This was  an exparte  order in favour of the appellant-wife. The application  filed by  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 t 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  is 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 a 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 last over four years      and in our judgment it would not be      in 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."      Once again,  the respondent  filed appeal in this Court in C.A.  No. 1289/90.   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

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    and we  decline to  express ay 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      exparte decree.   I  the  appellant      has any  other remedy  open in  law      against  the  exparte  decree  this      judgment will not preclude him from      pursuing such remedy."      Taking  advantage   of  the   said   observation,   the respondent filed  Case No.D9  of 1993  in the  Family Court, Bombay afresh  for custody  of child.    That  petition  was clubbed with  M.J. 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 dt. 1.12.95 allowing  the   respondent’s  application  D9  of  1993  and granting him  custody of  the child  to the  respondent  and dismissed appellant’s  M.J.Petition No.985  of 1985 filed to declare her marriage with respondent as null & void.      The appellant preferred appeal 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  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  10th June,  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 2.245 p.m. and then at 2.45  p.m. it  was dismissed  for non-prosecution.    The application o.  3411 of  1997 to  set  aside  the  same  was dismissed on  4.7.97.   It was  also held  i the  order  dt, 4.7.97 that  the appellant-mother  had no case on merits for retaining custody of the child.      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 &  void - without giving any  reasons, -  these two  Civil appeals  have  been preferred by the appellant.      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 & 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.      So far  as the  dismissal  of  the  appellant’s  appeal (against the  orders in  respondent’s application D9 of 1993 for custody)  for default  on 10.6.97 and the refusal of the High Court on 4.7.97 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

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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 superience 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.      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.      Parties & counsel on both sides wanted us to dispose of the custody matter on merits.      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   is      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      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 chile, 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 & brother’s wife are  prepared to  come to USA to take care of the child if the child should come to USA.      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

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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  US, there is no body 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 taking 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 Sringing 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 Corous  case or the orders in the proceedings under  the  Guardian  &  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.      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 15.4.86 and the exparte order in the Guardian & Wards Act case dated 23.11.87 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 is 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 fact 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 o 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:  From the  facts already  stated, it  is clear that the appellant  has an  order in her favour of the High Court of Bombay  dated 15.4.86 giving her the custody of the child passed while  dismissing the  writ  petition  filed  by  the respondent seeking  a writ  of baheas corpus.  The appellant then has  also an order in her favour passed again under the Guardian &  Wards Act  dated 23.11.1987,  though in  exparte proceedings, giving her permanent custody of the child.  The appeals preferred by the respondent against he said order to the Supreme  Court have  been dismissed.   The  order in the proceedings under  the Guardian  &  Wards  Act,  1890  dated 23.11.1987, even though exparte is binding on the respondent as it  concerns the  same subject matter and operates as res judicata (Mulla,  CPC, Vol.1,  15th Ed.,  P. 109)  (See also Sarkar on Evidence 13th Ed. P. 1128 that judgment by default creates an estoppel - quoting sailendra Narayan vs. State of

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Orissa AIR 1956 SC 346).      We re  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, in  so far 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 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.      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 an 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 vs. Jacob  a. Chakramakkal (1973 (1) SCC 840)].  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 anew case before the  court.  It must be established that the previous arrangement was  not conductive  to the  child’s welfare  or that it  has produced  unsatisfactory results.  Ormerod L.J. pointed out in S vs. W [(1981) 11 Fam.Law 21 (82) {CA)] 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".      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 is USA.  Lindley, L.J. in Re. vs. McGrath (Infants) 1893 (1) Ch. 143 (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      wides  sense.     The   moral   and      religious    welfare     must    be      considered as  well as its physical      well-being.   Nor can  the ties  of      affection be disregarded." As to  the "secondary"  nature of  material  considerations, Hardy Boys,  J. of  the New Zealand Court said in Walker vs. Walker &  Harrison (See  1981 N.Z.Recent  Law 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

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    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"      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 out 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.  Thee 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 both 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  o  e  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.      In the result, therefor, 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:  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.      This  point  can  perhaps  be  rejected  on  ground  of constructive res judicata because of the earlier order as to

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custody in  favour of the appellant but a 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.      The leading  case in this behalf is the one rendered by the Privy Council in 1951, in McKee vs. McKee (1951 AC 352). In that case, the parties, who were American citizens,  were married in  USA in  1933 and lived there till Dec, 1946. But they had  separated in Dec. 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 proceeding 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  the   permanent 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 vs. C [1970 AC 668].  This is the also in USA  (see   24  American   Jurisprudence,  para   1001)  and Australia.   (See Khamis vs. Khamis) [(1978) 4 Fam. L.R. 410 (full Court (Aus)].      However, there is an apparent contradiction between the above view  and the one expressed in ReH. (infants) 1996 (1) All E.R.  886 (CA)  and in ReE (an infant) 1967 (1) All E.R. 881 to  the effect that the Court in the country to which he child is  removed will  send back  the child  to the country from  which  the  child  has  been  removed.  This  apparent conflict is explained and resolved by the Court of Appeal in 1974 in ReL. (minor) (Wardship : Jurisdiction): 1974 (1) All E.R. 913  (CA) and in RER (Minors) (Wardship : Jurisdiction) : 1974  (1) All  e.R. 913 (CA) and in ReR (Minors) (Wardship Jurisdiction) 1981  (2) FLR  416 (CA).   It  was held by the Court of  Appeal in  ReL that the view in McKee vs. McKee 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

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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,  may, be, 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 will 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 removal of  the unauthorised  child from  the native country would not  come in  the way  of the  Court in the country to which the  child has  been remove, 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 Ed. 1988, pp. 1477- 14791 (Bromley,  Family law, 7th Ed. 1987).  In ReR (Minors) (wardship: Jurisdiction)  1981 (2)  FLR 416 (CA) it has been firmly held  that the  concept of  forum conveniens  has  no place in wardship jurisdiction.      We may  here state  that this  Court in  Mrs. Elizabeth Dinshaw vs.  Arvand M. Dinshaw & Another (1987 Z(1) SCC 42), 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  ReH. (infants), 1966 (1) All  ER 886  (CA) which case, as pointed out by us above has been   explained  in ReL (1974 (1) ALL ER 913) as a case where the  Court thought  it fit  to  exercise  its  summary Jurisdiction in  the interests  of the child.  Be that as it may, the  general principles  laid down  in Mckee  vs. McKee (1951 AC  3351) and Jvs. C (1970 AC 668) and the distinction between summary  and elaborate  inquiries as  stated in  ReL (infants) are  today well settled in U.K., 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 judicate.      The facts  of the  case are  that when  the  respondent moved the Courts in India and in the proceedings of 1986 for Habeas Corpus  & under  Guardian &  Wards Act, the Courts in India thought it best in the interests of the child to allow it to  continues 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

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return the  child to USA on the ground that its removal from USA in 1984 was contrary to orders of US Courts.      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  point 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 nature and objects  to its  return.   In England, these aspects are covered by the Child Abduction and Custody Act, 1985.      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 to which the child is removed will  consider the  question on  merits bearing  the welfare o  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  vs. McKLee (1951 AC 351), 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 ReL 1974 (1) All ER 193  (CA).  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, LJ 1996 (Current Law) (Year Book) (p.  165-166) 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.   She  also A(A minor) (Abduction :  Non-Convention Country)  (re, The Times 3-7-97 by Ward  LJ (CA)  (quoted in  Current Law  Aug. 1997, P.13). This answers the contention relating to removal of the child from USA.      Again as stated earlier, we do not prima facie find any willful 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.      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:  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.      On the facts of this case, we are not inclined to grant temporary custody  to the  respondent to take the child from

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India.   That would  affect the  child’s studies and further there is  an exparte  order of  the US Court given 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.      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 atleast 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 it 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.      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 child is dismissed subject however  to  the  visitation  rights  stated  above. Appeal against  the order  in the petition for declaring the marriage  of   appellant  and  respondent  null  &  void  is dismissed as  not pressed  in view of the decree of divorce, already  passed.    The  bailable  warrants  issued  against appellant  are   directed  to  be  withdrawn,  if  they  are subsisting.