LexMRS. ELIZABETH DINSHAW versus ARVAND M. DINSHAW AND ANR.
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MRS. ELIZABETH DINSHA W A v. ARVAND M. DINSHAW AND ANR. NOVEMBER l l, 1986 [V. BALAKRISHNA ERADI AND G.L. OZA, JJ.J B Constitution of India, 1950-Article 32-Divorce in USA-Minor ~ child-Custody given to mother and visiiation rights to father by Ameri- can Court-Father abducted •the child and brought to 'India against express orders of the American Court-Orders of proper foreign .7' Court-Should be regarded-Child restored to mother to be taken back C 1 ·to U.S.A. The petitioner, a citizen of the United States of ~erica residing in Michigan, was married to the first respondent,' an Indian citizen, who after marriage settled down in the United States and secured em!>" loyment. A male child was horn to the couple in America. Differences D arose between them and the petitioder alongwith her son took up sepa- . rate residence. She fled 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 the marriage as dissolved. The decree also directed that the .petitioner shall have the care, custody and control of the minor child until he E reaches the age of 18 years. The first respondent, the father was given visitation rights by the decree. On the subject of travel with the minor child to any place outside tbe United States, it was directed that only on a petition tbe Court shall make a determination as to whether ~uch travel is in the best interest of the minor child, and what conditions shall be set-forth to ensure the child's return. The 'Court also directed that F the first 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 granted by the said decree, the first respondent picked up the child from his school and secretly left America for India on January I Ith, 1986. He bad not G intimated the Court about his intention to take the child out of its jurisdiction and outside the country nor had he given the slightest indi- cation to the petitioner about his intention to leave America perma- "nently for India. Immediately before leaving for India, the first respon- dent sold away his immovable property and it was only from the Airport that he posted a letter tendering his resignation from his job. H 175 A 176 SUPREME COURT REPORTS [1987] 1 S.C.R. Coming to know that the minor child had not been returned 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 Conrt's decree: The Conrt isrued a warrant of arrest against the first respondent on the ground of unlawfnl taking and re- taining the child ontside the State, followed hy the issne of a Federal B warrant of arrest on the ground of unlawfnl Oigbt to avoid prosecution. Since the .first respondent bad already come over to India with the minor child these warr3Jllts could not be executed in the United States. The Consular Officer, American Consulate General, Bombay, visited the residence of the first respondent's parents in Pone but the minor , child was not present there and the grand-parents reported that the _,,•r C child and his father had gone North, possibly to Kashmir and that they were not aware of their exact whereabouts. Thereafter, the .petitioner D filed a petition in this Court seeking the issnance of a writ of Habeas Corpus directing the respondents to produce in Conrt her minor child :I! 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 isrued hy this Court, the fi..St respondent appeared and produced the child in Conrt and filed a connter-affidavit explaining his condnct the explanation tendered by him was that his father was seriously ill and be wanted bis father to see the child. It was further submitted that the· child prefers to stay with him in. Pone and E hence he was admitted in a School there and that it will be in the interest 'i of the child that be should be allowed to reside with him in India. Disposing of the petition, HELD: !. Whenever a question arises before Court pertaining to ~ F the custody of a minor child, the matter is to be decided not on consid- eration of the legal rights of parties but on the sole and predominant cri- terion of what would best
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