LexSMT. SURINDAR KAUR SANDHU versus HARBAX SINGH SANDHU & ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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SMT. SURINDAll KAUR SANDHU
v.
HARBAX SINGH SANDHU & ANR.
April II, 1984
[V.V. Cl!ANDRACHUD, C.J, AND SABYASACl!I MUKHARJf, J,j ·
Hindu MlnoTity ·ancl Guardiahshtp Act, J9S6·1Vec•iOn 6-Interpretalion
of-Custody of the· child. Conflict of Laws'-Jurisdlction 'Of the ·court to decid~
the questloa of custody of o minOr. child-who is a ,British citizen while the
parents are Indian .. citizens.
Appellant and Respondent No. I wore married io 1975 at Bodni
Kalan District Paridkot, Punjab according•to Sikh rites. Soon after the
marriage, they left for England, where a boy na~ed Pritpal Singh wa.s born
to them on October 24,. 1976. Soon thr:rep.fter, their relationship came
under a strain with the. reSult Respondent 1 'was trYing to negotiate w·itb
·• hitman to have tho appellant run over by a· oar.
The Berkshire Police
got.-=ent o(it rCsultiog in the Responderit's conviction and'Sentence for a
period of three years. Ironically· the' appellant. wife interovcncd and
succeeded 1u obtaining a probation order for the man who-ha~ att~n;iptcd
to procure her murder; The husband was released on probation on
February 4, 1982. The period of probation expired on December 24,
198i. On January 31, 1983, while the wife.was away at wor~, Respon· ·
dent No. 1 removed tho boy from England and brought him to India. On
the same date, the appeUant~Wife obtaind an order under section 41 of
tho Supreme Court Act, 1981 under which the boy became the ward of
the Court with effect from that date. This order was codfirmed · on July
22, 1983.
In tho ·meantime ·the appellant came to India in April, 198.3 and on
5.5.1983 filod·a petition under section 97 of the. _Code of Criminal
Procedure -in the Court of the learn_cd Judicial Magistrate first .class
Jagraon praying for° tho custody o(, the child. The Respondent No .. l
contested and took an objection . that under section 6 of' the Hinda
Minority and Guardianship Act, 1956 he was the natural guardi_an .of the·
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minor.boy. The- contention was accepted and the- petition· was dismissed.
The_appellant went back to England to resume her work and obtained
the confirmation order dated 22.7.1983 referred to afove. Armed with
the said order sh$' returned to Iodf8 and filed a writ Petition in the- High_
Court of Punjab and Haryana. The Wrif Petition· was dismissed on the
grounds inter a/ia that her status in England fs that of a foreigner, factory
worker and a wife.Jiving separately from
~e husband and h1ving no:
relatives and as such the ohiid would have to live in lonely and dismal
5UrroUtldiogs in .England~ while it WOUid grOw· in an atmosphere _Of seJf
confidence and seff respect, if it was permi\teq tq Uve with its fa(her a~q
"and p~reg tu,
•
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s. K. SANDHU v. H. s. SANDH{J (Chandrachud, c J.)
Hence the appeal arter ohtainiog special leave of the Court.
Allowing the appeal, the Court,
HELD : I. Section 6 of the Hindu Minority and' Guardianship Act,
1956 onstitutes the father as the natural gllardian of a mi'nor son. But
that povision cannot
~upersede the paramOunt co_nsideration as to what
is conducive to tho welfare of the minor. As the rnatters are· presented to
the Court the boy, from bis. own point of view, ought -to be in the
custo~y of the mother.
[427A·B]
2: 1 The modern theory of conflict of laws recognises 3nd, in any
event, prefers the jurisdiction of the State whiCh has the most intimate
contact with tho issues ari.sing in the case.
Juris~ictian is not attraCtcd
bY the operation or' creation of fortUitous circumstances such as the
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circumstance as to whC:rc the child, whose custody is in 'issue,. is brought
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or for the time being lodged. To allow the assumption of iurisdiclion by
another State in such circumstances will only result in encouraging
forum·shopping. Ordinarily, jurisdiction must
follow upon funCtional
lines. That is to say, foi example, that in matters relating to matri~ony •
and custody, the law of that place must govern which has the closest
concern with the welJ.·beine· of the spouses and the welfare of the offs-
prings of marriage· ·rhe spouses in this case had made BDgtand their
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home where this boy was QOrn to them.
The_ father cannot deprive the
English. Court of 'its jurisdiction to decide upon bis custody by ,removing
him .to India, not in the normal movement. of the m~trimonial home
but, by an act which was gravely detrimental to the place of that homeExcerpt shown. Read the full judgment & AI analysis in Lexace.