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