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Article 32 in The Constitution Of India 1949
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Supreme Court of India
Mrs. Elizabeth Dinshaw vs Arvand M. Dinshaw And Anr on 11 November, 1986
Equivalent citations: 1987 AIR, 3 1987 SCR (1) 175
Author: V B Eradi
Bench: Eradi, V. Balakrishna (J)
           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
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]



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, 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 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 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 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 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