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PETITIONER: MRS. ELIZABETH DINSHAW

       Vs.

RESPONDENT: ARVAND M. DINSHAW AND ANR.

DATE OF JUDGMENT11/11/1986

BENCH: 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)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 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

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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

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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]

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 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 authori-               ties  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 Michi- gan.  She  is  employed as a case worker for  the  State  of Michigan  in Genesee County Department of  Social  Services,

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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  peti- tioner  was married to the first respondent in a civil  mar- riage  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  Control- ler’s Office in Genesee County. and having obtained a perma- nent 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  peti- tioner  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  de- stroyed and there remained no reasonable likelihood that the marriage  could be preserved and hence it declared the  mar- riage  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 direct- ed 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  determina-               tion as to whether such travel is in the  best               interests of the minor child. and what  condi-               tions shall be set forth to ensure the child’s               return."     Taking advantage of the weekend visitation rights grant- ed  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

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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 tender- ing  his resigation from his job as Accountant in the  Coun- try.  In this context it is significant to recall  that  the decree  of the Circuit Court contained the following  direc- tions:            .               "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  re- spondent 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  respond- ent’s  parents  and she spoke with them,  the  minor  child, Dustan was not present there and the grand-parents reported- that  Dustan  and his father had gone  North,  possible,  to Kashmir  and  that they were not aware of the  exact  where- abouts  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  compe- tent foreign Court.     In response to the notice issued by this Court directing production of the child before the Court, the first respond- ent 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 deliber- ately  done anything wrong in bringing Dustan with him  from the  United  States  and that now the minor  child  is  well

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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 expla- nation  sought to be given by him namely, his father’s  ill- ness, is far from convincing and does not in any way justify such  gross violation and contempt of the order of the  Cir- cuit 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  inter- viewed 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  citi- zen.  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 guar- 182 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  accus- tomed  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  simi- lar  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

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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  coun- tries 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 Ameri- ca.  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  chil-               dren  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  general-               ly,  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  coun- try. 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

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forget and forgive what has happened in the past and cooper- ate  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  war- rants 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. 185