Supreme Court of India
SARITA SHARMAversusSUSHIL SHARMA
- Citation
- 2000 INSC 82
- Decided
- 16 February 2000
- Disposal
- Appeal(s) allowed
Holding
The welfare of the minor children is paramount and a foreign custody decree cannot override a full inquiry into their best interests; therefore the High Court’s Habeas Corpus order was improper.
Summary
Sarita Sharma and Sushil Sharma, married in 1988, were involved in divorce proceedings in a Texas court which intermittently granted custody of their two minor children to the father and limited the mother to visitation. While the divorce was pending, the mother exercised her visitation rights and removed the children to India without permission from the U.S. court, prompting the father to file a writ of Habeas Corpus in the Delhi High Court. The High Court ordered the mother to surrender custody to the father and allowed the children to be taken to the United States. On appeal, the Supreme Court held that the paramount consideration is the welfare of the children; a foreign decree is only a factor and cannot override the need for a thorough inquiry into the children’s best interests. Consequently, the Court set aside the High Court’s order, dismissed the writ petition, and allowed the appeal, directing that appropriate proceedings be initiated to determine custody after a full welfare assessment. The judgment emphasized that a female child should ordinarily remain with the mother and that the father’s alcoholism and lack of support network made immediate transfer to the U.S. contrary to the children’s welfare.
Issues considered
- The appropriateness of granting a writ of Habeas Corpus to compel the mother to surrender custody of the children to the father.
- Whether the decree and interim orders of the U.S. court controlling custody are binding on Indian courts.
- The paramount consideration of the welfare of the minor children versus compliance with a foreign court order.
- The jurisdictional competence of Indian courts to determine custody when the children have been removed from the foreign jurisdiction.
Legislation cited
Subjects
custody of minor childrenHabeas Corpuswelfare of childforeign court decreeHindu Marriage ActHindu Minority and Guardianship Actinternational child abductionjurisdictiondivorcevisitation rights
Judgment
-/
- SARITA SHARMA
v.
A
SUSHIL SHARMA
FEBRUARY 16, 2000
B
(G.T. NA."IAVATI AND S.N. PHUKAN, JJ.I
Hindu Marriage Act, 1955-Section 26---Custody of Minor
children-Divorce proceedings initiated by husband in USA-During the pen-
dency of the proceedings both husband and wife were living separately from
each other in USA-American Court passed an interim order giving custody c
of children (a boy and a girl) to husband and only visitation rights was allowed
to the wife-Exercising her visitation rights, wife took custody of children and
flew back to India-Husband filed a writ of Habeas Corpus before High Court
for custody of the children-High Court directing wife to restore custody of
children to husband and allowed take the children to USA-Held, in view of D
the facts and circumstance of the case, the decree passed by the American
Court though a relevant factor, cannot override the consideration of welfare
of the minor children-Therefore, in ~pite of the order passed by the Court in
USA it was not proper for the High Court to have allowed Hebeas Corpus
petition solely on the ground of breach of American Court's ordeT"-lnterest
of the children requires a full and thorough inquiry and, therefore, High Court E
should have directed the husband to initiate appropriate proceedings in which
such an inquiry can be held Hindu Minonty and Guardianship Act, 1956,
Section 6.
Custody of minor children-Role of mother--Ordinarily, a female child F
should be allowed to remain with the mother so that she can be properly
looked afteT"-lf female child has to stay with the mother, it will be in the
interest of another child that they both stay with the mother.
Appellant and Respondent got married in 1988. Respondent (hus-
band) initiated a proceeding for divorce in District Court of USA in 1995 G
in which interim orders were passed from time to time regarding the care
and custody of the children and visitation rights of appellant and respon-
dent. Even when divorce proceedings were pending, the couple lived
together between November 1996 and March 1997. They again separated
but on this occasion appellant took the children with her. Associate Judge H
915
__
,
916 SUPREME COURT REPORTS [2000) 1 S.C.R.
A of the District Court U.S.A. taking note of this incident, passed an order
for putting the children in the care of respondent and appellant was given
only visitation rights. Exercising her visitation rights, appellant took the
-
children from the house of respondent and did not leave the children at
school the next day. On making inquiries, respondent came to know that
B appellant had vacated her apartment and gone away somewhere. Respon-
dent therefore, informed the police and a warrant for arrest of appellant
was issued. Respondent later on came to know that without seeking per-
mission from the American Court, appellant had Down away to India with
the children. Later on a divorce decree was passed by the court in t;SA
and in view or the conduct of the appellant, an order was passed giving the
C custody of the children soltly to the respondent and even visitation rights
were denied to the appellant. The records of the divorce proceedings
showed that respondent was alcoholic and violent towards appellant and
children. Before the appellant came to India she was in lawful custody of
the children. The question was whether the custody became illegal as she
D had committed a breach of the order of the American Court directing her
not to remove the children from the jurisdiction of that Court. It was in
these circumstances, that the respondent, filed a Habeas Corpus petition
before the High Court for the custody of the minor children and the same
\?as allowed by the High Court. [923-E-H; 924-A-C]
E In appeal to this Co:~rt, it was contended by the appellant that in a
Habeas Corpus petition what a court should consider w.ts whether the
person, in respect of whom a writ of Habeas Corpus is sought, was kept
in illegal custody or W-.ts detained against his wish; that Habeas Corpus
petition was not an approvriate proceeding for securing custody of minor
F children staying with the mother, that when she came to India with the
• children she was the natural guardian of the children and also managing
conservator of the children, the decree of divorce and order for custody of
children was obtained by respondent by suppressing material facts from
the Court and that the said decree and order, even otherwise, should not
In ta!ten as binding on the Courts in India as it was inconsistent with the
G mw applicuble to the parties.
Allowing die appeal, this Court
HELD : 1.1. It will not be proper to be guided by the fact that the
H npp:llant hnd removed the children from t:.S.A. despite the order of the
SARITA SHARMA v. SUSHIL SHARMA 917
Court of that country. So also, in view of the facts and circumstances A
of the case, the decree passed by an American Court though a relevant
factor, cannot override the consideration of welfare of the minor
children. In LS.A. respondent is staying along with his mother aged
about 80 years. There is no one else in the family. The respondent
appears to be in the habit of taking excessive alcohol. Though it is true B
that both the children have the American citizenship and there is a
possibility that in t; .S.A. they may be able to get better education, it is
doubtful if the respondent will be in a position to take proper care of
the children when they are so young. Out of them one is female child.
She is aged about 5 years. Ordinarily, a female child should be allowed C
to remain with the mother so that she can be properly looked after. It
is also not desirable that two children are separated from each other.
If a female child has to stay with the mother, it will be in the interest
of both the children that they both stay with the mother. Here in India
also proper care of the children is taken and they are at present studying
in good schools. The appellant is not found wanting in taking proper
D
care of the children. Both the children have a desire to stay with the
mother. At the same time it must be said that the son, who is elder than
daughter, has good feelings for his father also. Considering all the
aspects relating to the welfare of the children, in spite of the order
passed by the court in U.S.A., it was not proper for the High Court to E
have allowed the Habeas Corpus writ petition and directed the appellant
to hand over custody of the children to the respondent and permit him
to take them away to U.S.A. What would be in the interest of the children
requires a full and thorough inquiry and, therefore, the High Court
should have directed the respondent to initiate appropriate proceedings F
in which such an inquiry can be held.
1.2. Still there is some possibility of mother returning to U.S.A. in
the interest of the children. Therefore, it is not desirable to say anything
more regarding entitlement of the custody of the children. The chances G
of the appellant returning to U.S.A. with the children would depend upon
the joint efforts of the appellant and the respondent to get the arrest
warrant cancelled by explaining to the court in U.S.A. the circumstances
under which she had left U.S.A. with the children without taking
permission of the Court. There is a possibility that both of them may H
918 SUPREME COURT REPORTS '.2000] 1 S.C.R.
A thereafter be able to approach the Court which passed the decree to
suitably modify the order with respect to the custody of the children and
•· visitation rights. [924-D-E]
Elizabeth Dinshaw v.Arvand M. Din.~haw, [1987] 1SCC42, relied on.
B Surinder Kaur Sandhu v. Harbax Sigh Sandhu, [1984] 3 SCC 698;
Dhanwantri Joshi v. Madhav Unde, [1998] 1 SCC 112, referred to.
International Shoe Company v. State of Washington, 90 L. Ed. 95
(1945) : 326 US 310; Mc Kee v. Mc Kee, (1951) AC 352 : (1951) 1 All ER
C 942; !. v. C., (1970) AC 668: (1969) 1 AJI ER 788; H (Infants), Re, (1966) 1
All ER 886 : (1966) WLR 381, CA; E (Infants), Re, (1967) 1 All ER 88,
referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
337of1998.
D
Frotn the Judgment and Order dated 18.2.98 of the Delhi High Court
in W.P. (Crl.) No. 656 of 1997.
S.K. Dholakia, Arun Jaitley, R.K. Jain, Harish Chandra, Arun Kapil,
E Ms. Sumita Kapil, Ms. Poonam Prasad, Subramonium Pra~ad, Manoj Goel,
Rajeev Sharma, Sanjeev Smghvani, Ms. Anita Verma, D.S. Mehra, Sanjiv
Sharma, Ms. Anil Katiyar, M.K.D. Namboodry, Rajesh Srivastava and M.C.
Dhingra, for the appearing parties.
The Judgment of th.: Court was ddiven::d by
F
G.T. NANAVATI, J. This appeal is filed against the judgment and
order of the High Court of Ddhi in Writ Petition (Crl.) No. 656 of 1997.
Sushil Sharma had filed the writ petition seeking a writ of Habeas Corpus
in respect of two minor children Neil and Monica, aged 7 and 3 years
G respectively. It was alleged that the children are in illegal custody of Sarita
Sharma, whom he had married on 23.12.1988. The High Court allowed the
petition and directed Sarita to restore the custody of two children to Sushil
Sharma. The passports of the two children were also ordered to be handed
over to Sushi] Sharma and it also dt:clared that it was opt:n to Sushi!
Sharma to take the children to U.S.A. without any hindrance. Sarita has,
H therefore, filed this appeal.
SARITA SHARMA v. SUSHILSHARMA[G.T. NANAVATI, J.j 919
Sushil initiated proceedings for dissolution of his marriage in the A
District Court of Tarrant Country, Texas, L .S.A. in 1995. In the said
proceedings interim orders were passed from time to time with respect to
the care and custody of the children and visitation rights of Sushil and
Sarita. Even while the divorce proceedings were pending Sushil and Sarita
lived together from November, 1996 to March, 1997. They again separated.
B
This time Sarita had taken the children along with her. It was stated in the
writ petition that the Associate Judge, taking note of the fact that Sarita
had gone away with the children, passcd an order for putting the children
in the care of Sushil and Sarita was only given visitation rights. On 7.5.1997
Sarita had picked up the children from Sushil's residence in exercise of her
visitation rights. Shc was to leave the children in the school the next day c
morning. Sushi! got the information from the school that the childn:n were
not brought back to the school. On making inquiries he came to know that
Sarita had vacated her apartment and gone away somewhere. He had,
therefore, informed the police and a warrant for her arrest was also issued.
It was further stated in the petition that his further inquiries revealed that D
Sarita had, without obtaining any order from the American Court, flown
away to India with the children. It was further stated in the petition that
on 12.6.1997 a divorce decree was passed by the Associate Judge and in
view of the Conduct of Sarita he has also passed an order declaring that
the sole custody of the children shall be of Sushi!. She had been denied
even the visitation rights. Sushi! then filed a writ petition in the Delhi High
E
Court on 9.9.1997. Sarita's contention in thc reply to the petition was that
by virtue of the orders dated 5.2.1996 and 2.4.1997 she and Sushil were
both appointed as Possessory Conservators and, therefore, on 7.5,1997 both
the children were in her lawful mstody. Ii was also her contention that she
had brought the children to India with full knowledge of Sushil. It was also F
her contention that Sushil is not a person fit to be given physical custody
of the children as he is alcoholic and violent as disclosed by the material
on record of the divorce proceeding. The High Court held that in view of
the interim orders passed by the American Court Sarita committed a wrong
in not informing that court and taking its permission to remove the children G
from out of the jurisdiction of that court. The High Court took note of the
fact that a competent Court having territorial jurisdiction has now passed
a decree of divorce and ordered that only the father, i.e. Sushi~ shall have
the custody of the children. The High Court rejected the contention of
Sarita that the decree of divorce and the order for the custody of the H
920 SUPREME COURT REPORTS [2000] 1 S.C.R.
A children were obtained by Sushil by practicing fraud on the Court and
further observed that even if that is so, she should approach the American
Court for revocation of that order. Taking this view the High Court allowed
the writ petition and gave the directions n;ferred to above.
B The learned counsel appearing for the appellant submitted that in a
Habeas Corpus petition what a Court should consider is whether the
person, in respect of whom a writ of Habeas Corpus is sought, is kept in
illegal custody or is detained against his wish. He further submitted that a
Habeas Corpus pc:tition is not an appropriate proceeding for securing
custody of minor children staying with the mother. He further submitted
C that wht:n she came to India with the children she was the natural lawful
guardian of the children and also managing conservator of the children.
With respect to the decree of divorce and order for custody of the children,
he submitted that the said decree and order were obtained by the respon-
dent by suppressing material facts from the Court and the said decree and
D order, even otherwise, should not be taken as binding on the courts in
India, as they are not consistent with the ~aw applicable to the parties. He
lastly submitted that even if the said decree and order are treated as valid
for the present the High Court should not have allowed the writ petition
without considering the welfare of the children.
E
The record of the divorce procet:ding which has come on the record
of this case discloses that prior to their separation Sushi! and Sarita with
their two children md Su;.hil's mother were staying together in l'.S.A The
record further ,fa.Justs that there \vcre sermu;, difftrrnu:s b..;tw::rn the
F two. Sushi! was alcoholic and had used vioknce against Sarita. Sarita's
cQJiduct was abo not very satisfactory. Bt:fore she came to India with the
children she was in lawful custody of the children. The question is whether
the custody becam;;: illegal as she had committed a breach of the order of
the American Court directng her not to remove th.: children from the
jurisdiction of that Court without its permission. After she camt: to India
G a decree of divorce and the order for the custody of the children have been
passed. Therdore, it is also required to bi: considered whether her custody
of the children became illegal thereafter.
Mr. R.K. Jain, leaned senior counsd appearing for the respondent
H submitted that the facts of this case are similar to the facts of Surinder Kaur
SARITASHARMAv. SUSHILSHARMA(G.T. NANAVATI,J.] 921
Sandhu v. Harbax Singh Sandhu, [1984] 3 SCC 698 and following the A
decision in that case this appeal should be dismissed. ln that case this Court
after refereeing to the facts observed as under :
"We may add that the spouses had set up their matrimonial home
in England where the wife was working as a clerk and the husband B
as a driver. The boy is a British citizen, having been born in
England, and he holds a British passport: It cannot be controverted
that, in these circumstances, the English Court had jurisdiction to
decide the question of his custody. The modern theory of conflict
of Laws recognises and, in any event, prefers the jurisdiction of C
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 fortuitous circumstances such as the circumstance as
to where the child, whose custody is in issue, is brought or for the
time being lodged. To allow the assumption of jurisdiction by D
another State in such circumstances will only result in encouraging
forum-shopping. Ordinarily, jurisdiction must follow upon func-
tional 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 offsprings of marriage. The spouses in this case had E
made England their home where this boy was born to them. The
father cannot deprive the English Court of its jurisdiction to decide
upon his custody by removing him to India, not in the normal
movement of the matrimonial home but, by an act which was
gravely detrimental to the peace of that home. The fact that the F
matrimonial home of the spouses was in England, establishes
sufficient contacts or ties with that State in order to make it
reasonable and just for the courts of that State to assume jurisdic·
lion to enforce obligations which were incurred therein by the
spouses. See International Shoe Company v. State of Washington, G
(90 L Ed 95 [1945J : 326 US 310), which was not a matrimonial
case but which is regarded as tht: fountainhead of the subsequent
developments of jurisdictional issues like the one involved in the
instant case). It is our duty and function to protect the wife against
the burden of litigating in an inconvenience forum which she and H
922 SUPREME COURT REPORTS [2000] 1 S.C.R.
A her husband had left voluntarily in order to make their living in
England, where they gave birth to this unfortunate boy.''
In that case tJ\e husband had removed the boy from England and brought
him to India and the wife after obtaining an order of English Court,
whereby the boy became the War<l of the Court, came to India and filed
B a petition in the High Court of Punjab and Haryana seeking a writ of
Habeas Corpus. The High Court rejected the wife's petition on the ground,
inter alia, that her status in England is that of a foreigner, a factory worker
and a wife living separately from the husband; that she had no relatives in
England; and that, the child would have to live in lonely and dismal
C surroundings in England. It was also dismissed on the ground that the
husband has gone through a traumatic experience of a conviction on a
criminal charg~ that he was back home in an atmosphere which welcomed
him; that his parents were in affluent circumstances; and that, the child
would grow in an atmosphere of self-confidence and self-respect if he was
D permitted to live with them. After considering the legal position this Court
observed:
"Section 6 of the Hindu Minority and Guardianship Act, 1956
constitutes the father as the natural guardian of a minor son. But
that provision cannot supersede the paramount consideration as
E to what is conducive to the welfare of the minor."
In Dhanwanti Joshi v. Madhav Unde,[1980] l SCC 112, this Court after
referring to the decision of the Privy Council in Mc Kee v. Mc Kee, (1951)
AC 352 : (1951) All ER 942 and that of House of Lords in J v. C, (1970)
F AC 668 : (1969) l All ER 788, the two decisions in which contrary view
was taken, namely, H (Infants), Re (1966) 1 All ER 886 : (1966) 1 WLR
381, CA and E (Infants), Re (1967) 1 All ER 881, also the decision of this
Court in Elizabeth Dinshaw v. Aivand M. Dinshaw, (1987) l SCC 42 and
also the Hague Convention of 1980 observed as under :
G ''As of today, about 45 countrie~ are parties to this Convention.
India is not yet a signatory. Vnder the Convention any child below
16 years who had been "wrongfully'' removed or r::tained in another
•
contracting State, could be returned back to the country from
which the child had been removed, by application to a central
H authority.''
SARITA SHARMA v. SUSHILSHARMA(G.T. NANAVATI,J.] 923
'So far as non-Convention countries are concerned, or where the A
removal related to a period bdore adopting the Convention, the
law is that the court in the country to which the child is removed
will consider the question on merits bearing the welfare of the child
as of paramount importance and consider the order of the foreign
court as only a factor to as taken into consideration as stated in B
Mc Kee v. Mc Kee 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 explaned in L., Re. As recently as 1996-97, it has
been held in P (A minor) (Child Adbuction : Non-Convention
Country), Re : by Ward, L.J. (1996 Current Law Year Book, pp.
165-166) that in deciding whether to order the return of a child C
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 of attempt to apply the provisions
of Article 13 of the Convention by ordering the child's return unless D
a grave risk of harm was established. See also A (A minor)
(Abduction: Non-Convention Country) (Re, The times 3.7.97 by
Ward, L.J. (CA) (quoted in Current Law, August 1997, p. 13). This
answers the contention relation to removal of the child from U.S.A.
''Therefore, it will not be proper to be guided entirely by the fact that E
the appellant Sarita had removed the children from U.S.A. despite the
order of the Court of that country. So also, in view of the facts and
circumstances of the case, the decree passed by the American Court
though a relevant factor, cannot override the consideration of welfare of
tht: minor children. We have already stated earlier that in U.S.A. respon- p
dent Sushi! is staying along with his mother aged about 80 years. There is
no one else in the family. The respondent appears to be in the habit of
., taking excessive alcohol. Though it is true that both the children have the
American citizenship and there is a possibility that in U.S.A. they may be
able to get better education, it is doubtful if the respondent will be in a
position to take proper care of the children when they are so young. Out G
of them one is a female child. She is aged about 5 years. Ordinarily, a
female child should be allowed to remain with the mother so that she can
be properly looked after. It is also not desirable that two children are
separated from each other. If a female child has to stay with the mother,
it will be in the interest of both the children that they both stay with the H
924 SUPREME COURT REPORTS [2000) 1 S.C.R.
A mother. Here in India also proper care of the children is taken and they
are at present studying in good schools. We have not found the appellant
wanting in taking proper care of the children. Both the childrtn have a
desire to stay with the mother. At the saml- time it must be said that the
son, who is elder than daughter, has good feelings for his father also.
Considering all the aspects relating to the welfare of the children, we are
B of the opinion that in spite of the order passed by the Court in U.S.A. it
'il'as not proper for the High Court to hav..: allowed the Habeas Corpus writ
petition and directed the appdlant to hand over custody of the children to
the respondent and permit him to take them away to U.S.A. What would
be in the interest of the children requires a full and thorough inquiry and,
C therefore, the High Court should have directed the respondent to initiate
appropriate proceedings in which such an inquiry can be held. Still there
is some possibility of mother returning to U.S.A. in the interest of the
children. Therefore, wt do not desire to say anything more regarding
entitlement of the custody of the children. The chances of the appellant
D returning to U.S.A. with the children would depend upon the joint efforts
of the appellant and the n:spondent to get the arrest warrant cancelled by
explaining to the court in U.S.A. the circumstances under which she had
left U.S.A. with the children without taking permission of the Court. There
is a possibility that both of them may thereafter be able to approach the
Court which passed the decree to suitably modify the order with respect
E to the custody of the children and \isitation rights.
For the reasons stated above, we allow this appeal, set aside the
judgment and order of the High Court and dismiss the writ petition filed
by the respondent.
F R.K.S. Appeal allowed.
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