LexDHANWANTI JOSHI versus MADHAV UNDE
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A DHANW ANTI JOSHI v. MADHAV UNDE NOVEMBER 4, 1997 B [S.B. MAJMUDAR AND M. JAGANNADHA RAO, JJ.] Guardian and Wards Act, 1890: Custody of child-Parents living separately-Child in mother's custody C for more than 12 years-Ex-parte order of High Court granting permanent custody to mother-Family Court shifting the custody of child to father- High Court dismissing the appeal holding that appellant-mother has no case on merit for custody-On appeal, held, superior financial capacity cannot be the sole consideration for change of custody from mother to D father-No substantive change in the circumstance justifYing shift over of the custody of child-Respondent-father not entitled lo custody of child- Visitation rights allowed. Removal of child from one country to another-Order of-US Courts granting custody of child lo father-Summaiy jurisdiction of Indian Courts E 10 retum the child-Exercise of-Held, the Indian Courts would not exercise s1111111101y jurisdiction to return the child to the father when the child had lived for more than 12 years with the mother-Welfare of child should be the overriding consideration in deciding the malter. F Civil Procedure Code, 1908 : Section 11-Res Judicata-Ex-parte order of High Court granting permanent custody of child lo mother-No substantive change in the circumstances of the case-Family Court shifting the custody to the father-High Court holding that mother has no case on merit for custody of child-Held, ex-parte order of High Court binding on parties-Subsequent proceedings covering the same subject mailer barred by G res judicala-Thus High Court erred in not referring to the earlier orders and their binding nature on the parties. Respondent married appellant in U.S.A. He had earlier married 'B' at Nagpur and obtained an ex-parte divorce order against her in U.S.A. by misrepresentation. Appellant and respondent lived together for ten months H after their marriage and a male child was born to them. The mother and child 30 DHANW ANTI JOSHI v. MAD HA V UNDE 31 left the respondent when the child was thirty five days old. The respondent A filed a divorce case in a Court in U.S.A. and also sought custody of the child. The Court initially gave the custody of the child to the mother and an ex- parte divorce decree was passed. The respondent succeeded in obtaining an ex-parte order for visitation rights in his favour which was modified into one of temporary custody. Subsequently, the Court passed an ex-parte order B granting permanent custody to the respondent-husband. Appellant filed a petition in Civil Court, Bombay for a declaration that her marriage with the respondent was null and void; maintenance for her and the child; for a declaration that the decree passed by the US Court was not binding on her and for injunction against the respondent against removing C the child from her. A habeas corpus petition was filed by the respondent in the High Court of Bombay which was dismissed by granting custody of the child to the appellant. Special leave petition against the above order was also dismissed. Thereafter the appellant started proceedings under the Guardian and D Wards Act, 1890 for permanent guardianship of her son. The Court by an ex-parte order appointed her as permanent and lawful guardian of the child. An application for setting aside the above order was dismissed. On appeal, the High Court dismissed the appeal of the respondent. On further appeal, this Court while dismissing the appeal observed that if the appellant had any E other remedy open in law, the judgment will not preclude him from pursuing such remedy. Thus the respondent approached the Family Court for custody of child. The said petition was clubbed with the earlier petition filed by the appellant for declaring her marriage as void. The Family Court allowing the respondent's application and granting him the custody of the child, dismissed the appellant's petition. Appellant preferred an appeal before the High Court F and got stay. During the hearing of the appeal, the respondent was given custody of the child for 4 days but on the first day itself the boy ran away and was traced subsequently. The respondent took the child to his village for three days. The High Court directed the appellant to produce the child in the Court. But the child refused to come to the Court because of the unpleasant G experience with the father. The High Court initiated contempt proc
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