JUDGMENT
V.K. Jhanji, J.
1. In this writ petition for Habeaus corpus, prayer made is for directing respondent No. 3 to produce the child before this Court and custody of the child be restored to the petitioners who are her guardians.
2. Ms. Monika Gill, a minor aged 12-1/2 years is daughter of Udham Singh who is son of Dalip Kaur petitioner No. 1, and real brother of petitioner No. 2. The mother of the child is Preet Kamal who was married to Udham Singh. They were married in the year, 1980 and Monika Gill was born out of the wed-lock on 15.4.1983. The child having been born in U.S.A. is an American citizen and is holder of passport issued in U.S.A. The father of the minor was earlier married to one Shavinder Kaur and out of that marriage, three daughters were born. After divorcing Shavinder Kaur, Udham Singh married the mother of the minor. He divorced mother of the minor in the year, 1985 and again got married to his first wife namely Shavinder Kaur. Three daughters from the first marriage are married; two of them are settled in United States whereas the third one is settled in India with her husband. Monika Gill for the first time came to India when she was seven months old and spent approximately six months at Moga with her grand-mother till June, 1984 when she went back to U.SA. In 1985 when Udham Singh divorced Preet Kamal, the Superior Court of California, Country of Alameda gave legal and physical custody of Monika to her parents on time-sharing basis, i.e. 52 per cent time share with the mother and 48 per cent time share with Udham Singh. It has been averred in the petition that in 1988, petitioner No. 1 was in U.SA. and had been staying with her son Udham Singh who by then had re-married his first wife namely Shavinder Kaur. In 1990, while petitioner No. 1 was still in U.S.A., Pritam Kaur, i.e. sister of Udham Singh (Petitioner No. 2 herein) also visited U.SA. On 20.2.1990, petitioner No. 1 came to India along with the minor. Udham Singh too came after few days and put his daughter in Summer. Field School, Moga. Petitioners 1 and 2 were appointed as local guardians of the minor. Monika had been studying in this school till the present petition came to be filed. It appears that some civil litigation started between Udham Singh and his mother and sister in regard to some landed property which he had owned in India. According to Udham Singh, he had given power of attorney to his sister to manage the land and to meet the expenses of Monika from the income of land, but his sister clandestinely transferred the land by way of civil court decree in favour of his mother, i.e. petitioner No. 1. Monika turned 12 on 15.4.1995 and on 16.4.1995 Udham Singh came to India with his wife. He got Monika admitted in the hostel of the school. When this happened, petitioner No. 2 was not in India as she had gone to U.S.A. in June, 1994. She came to India in November, 1995 when she was told about the sequence of events and admission of Monika in the hostel. Petitioners have alleged that they were prevented from meeting the minor, but some-how petitioner No. 2 managed to meet Monika, minor on 17.12.1995 who expressed that she would like to stay in India with her grand-mother and aunt or else go back to U.SA. to her mother. They have stated that it is at the behest of the minor that they have filed the present petition for her custody.
4. At the time of filing of the petition, Udham Singh was not in India, but has come to India to contest the petition. A short affidavit has been filed on behalf of Narinderpal Singh, Superintendent of Police, Moga in which it has been stated that there is a family dispute between the parties to become local guardians of the minor and there is no cause for him to interfere in the family affairs of the petitioners. However, Udham Singh in his written statement has stated that he, Monika and her mother are all American citizens. He has placed on record order dated 18.7.1995 of the Superior Court of California, Country of Alameda where by earlier order giving custody of the minor on time-sharing basis has been modified and he has been given sole custody of the minor. He has averred that he is the sole legal as well as natural guardian of the minor and is the best person to take care of physical, mental and emotional needs of the child. It is also his averment that the child is studying and staying in boarding house as per her own wishes. He has further stated that he is ready and willing to take the child to” America for her further studies.
5. In order to know the respective version of the parties and to assess the state of mind of the minor, I talked to them individually in my chamber. After hearing them at length, I found that it was with the consent of Udham Singh, Monika had been living with her grand-mother and studying in Summer Field School, Moga. On 16.4.1995, Udham Singh came to India with his wife. He got Monika admitted in the hostel under the care and custody of Principal of the school namely Mrs Asha Dhillon, respondent No. 3 herein. He also left instructions with the Principal that no other person than Sukhdev Singh (his elder brother) or Paramjit Singh (his brother-in-law) should be permitted to see her. The relationship between him and the petitioners had deteriorated because of the transfer of land, which he owned, by his attorney to his mother. He has filed a suit challenging the transfer. Udham Singh put Monika in hostel of her school on 16.4.1995, but petitioner No. 1 took no steps to challenge this action of her son till the filing of present petition. Monika is an intelligent girl and is more mature than her age. I talked to her nearly for 20 minutes in the chamber. She categorically stated that she is not willing to live with her grand-mother or aunt, but would like to go to America with her father. The Principal has informed me that Monika has been a very good student all along and her grades and performance have been excellent and she is one among the top few students.
6. Although the position under the Hindu Law as well as Under Section 6 of the Hindu Minority and Guardianship Act is that normally when the father is alive he is the natural guardian of the minor and it is only after him that the mother becomes the natural guardian, but in matters concerning the custody of minor children the paramount consideration is the welfare of the minor and not the legal right of this or that party. In the present case, as the things stand today I am of the view that father is entitled to custody of the minor as it would be in the welfare of the minor. Otherwise too, petitioners have no legal right to insist upon custody of the minor as she had been staying with them only with the consent of her father. It also deserves to be mentioned that petitioner No. 1 is an old woman of 86 years, whereas petitioner No. 2 is also a grand-mother having her own grand-children. In the presence of litigation which has started between petitioners and the father of minor, it would not be in the interest of the minor to remain in the company of her grand-mother or aunt. Moreover, counsel for the petitioners could not point out any circumstances of such an over-whelming importance so as to deny the custody of the minor to her father. Apart from this, the parents of the minor are American citizens and had set up their matrimonial home in U.S.A. The minor holds an American passport. In regard to her custody, the matter has already been determined by a competent Court in U.S.A. and therefore, it would, be proper for this Court to leave the matter to that Court to determine finally as to what, would be in the welfare of minor on her coming to U.S.A. In this regard the observations of the Apex Court in Surinder Kaur Sandhu v. Harbax Singh Sandhu and Anr., A.I.R. 1984 S.C. 1224 may be noticed :-
“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 circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To follow 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 off-springs of marriage.”
Thus, as the matters have been presented. I am of the view hat the petitioners are not entitled to custody of the minor.
7. Consequently, this writ petition shall stand dismissed. The minor has desired and shown her keenness to go with her father and her father too has undertaken that he shall take Monika to U.S.A. and shall abide by the decision of Superior Court of California, Country of Alameda, with regard to her maintenance and custody. Therefore, it is ordered that Monika’s custody be given to Udham Singh, her father. No costs.