SARITA SHARMA versus SUSHIL SHARMA

Citation: [2000] 1 S.C.R. 915 · Decided: 16-02-2000 · Supreme Court of India · Bench: G.T. NANAVATI, S.N. PHUKAN · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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SARITA SHARMA 
v. 
SUSHIL SHARMA 
FEBRUARY 16, 2000 
(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 
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 
A 
B 
c 
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 othe

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