Paul Mohinder Gahun vs State Of Nct Of Delhi And Ors.
2004 Latest Caselaw 835 Del

JUDGMENT

T.S. Thakur, J.

1. That a petition for a writ of habeas corpus is maintainable even in cases where the parents are fighting for the custody of their off-spring is no longer res integra. In Gohar Begum v. Suggi @ Nazma Begum and Ors. , the Apex Court traced the history of habeas corpus as prevalent in England and held that the principles applicable to such writs in England were also applicable to directions issued under Section 491 of the Cr.P.C. in this country. The court further observed that the power under Section 491 of the Cr.P.C. had been exercised in this country even in relation to the custody of the children, and approved the ratio of the decisions in Rama Iyer v. Nataraja Iyer AIR 1948 Madras 294, Zara Bibi v. Abdul Razzak 12 Bombay Law Reporter 89 and Subbaswami Goundan v. Kamakshi Ammal AIR 1929 Madras 834 where the courts had exercised such power. More importantly the court held that the remedy available under Section 491 of the Cr.P.C. would become infructuous if it was not available in case involving custody of infants.

2. The above decision was approved by a Constitution Bench of the Supreme Court in Kanu Sanyal v. District Magistrate, Darjeeling and Ors. . The court in that case held that habeas corpus was essentially a procedural writ dealing with the machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ, declared the court, is a command addressed to the person who is alleged to have another person unlawfully in has custody, requiring him to bring the body of such person before the court in order that the circumstances of the detention may be enquired into and an appropriate judgment rendered upon judicial enquiry into the alleged unlawful restraint. The characteristic element of the writ and the theory behind the whole procedure observed the court was the immediate determination of the right of the applicant's freedom and his release when the detention is found to be unlawful.

3. The approach to be adopted by the courts while dealing with a petition for a writ of habeas corpus in relation to the custody of minor child has also been authoritatively indicated by the Supreme Court in a series of decisions delivered on the subject. In Sayed Saleemuddin v. Dr. Rukhsana and Ors. , their lordships held that in a petition seeking a writ of habeas corpus for the custody of a minor child, the principal duty of the court is to ascertain whether the custody of child is unlawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child left in the care and custody of somebody else. The court reiterated that in the matter of custody of a child, the welfare of the child is the paramount consideration for the court.

4. To the same effect is the decision of the Supreme Court in Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Anr. where the court held that whenever a question pertaining to the custody of a minor child arises for consideration, the matter is to be decided not by reference to the legal rights of the parties but on the sole and paramount criterion of what would best serve the interest and welfare of the minor. Even in Dhanwanti Joshi v. Mahadev Unde , the court took a similar view. It referred to Hague Convention of 1980 on Civil Aspects of International Child Abduction according to which if a child is wrongfully removed from one State to the other, the courts in the country to which he is so removed are required to send the child back to the country from where he was removed unless it is found that the child would be exposed to physical or psychological harm. India not being a signatory to that Convention, questions regarding the custody of the child will have to be considered on the merits of each case bearing the welfare of the child as of paramount importance and the order made by a foreign court taken into consideration only as one of the relevant factors.

5. The legal position settled by the above decisions was reiterated by their lordships of the Supreme Court in Sarita Sharma v. Sushil Sharma the orders made by a foreign court held to be one but not the only consideration to be kept in mind. The following passage is, in this connection, apposite :-

'' Therefore, it will not be proper to be guided entirely by the fact that the appellant Sarita had removed the children from USA 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 the minor children.''

6. The present writ petition filed by the husband seeks a writ in the nature of a habeas corpus directing the respondents including the wife to produce before the court their minor daughter, named, Anika Gahun and a direction that the custody of the minor be handed over to the petitioner father of the child in compliance with an ex parte interim order obtained by him from a court in Canada. The writ petition details the events that appear to have embittered the mutual relationship of the two spouses while they were living in Canada. It is, in our opinion, not necessary to refer to the numerous incidents which the couple has recounted in their respective pleadings each trying to portray that domestic peace and harmony had broken been irretrievably disturbed on account of the intolerant and non-cooperative conduct of the opposite party. All that need be said is that in the absence of any serious allegations of infidelity, insanity or incurable disease, the events narrated by the parties may in a given case be seen as ordinary wear and tear of married life. The parties to this petition did not, however, see those events in that light. The cumulative effect of what may have been small and insignificant matters manifested itself in the respondent wife refusing to go back to Canada at the end of what was understood to be only a temporary visit to the country of her origin.

7. The wife instead filed a petition in the court of District Judge, Delhi seeking guardianship of the minor child. This petition was presented on 25th March, 2004 shortly where after the husband served upon her a copy of an order dated 8th April, 2004 issued by the Court of Queen's Bench of Alberta District of Edmonton, Canada granting to him on an interim basis the custody of the minor child by retrieving the said custody from the respondent and her parents in New Delhi. The order further directed that once the child was brought back to the province of Alberta, the respondent shall stand prohibited from removing her from the said province without further orders of the said court. Having failed to retrieve the custody of the child on the strength of the said order, the husband filed the present petition in this court for a writ of Habeas Corpus in July 2004 as already noticed earlier.

8. On behalf of the petitioner husband, it was argued on the authority of the decision of the Supreme Court in Surinder Kaur v. Harbax Singh that the interim order passed by the court in Canada legally entitled the petitioner to the custody of the minor child, but since the mother of the child had removed him from the jurisdiction of the said court, the courts in this country ought to transfer the custody of the child to the petitioner as the removal of the child to India could not oust the jurisdiction of the Canadian courts nor promote his welfare which indeed was the paramount consideration. Reliance in support of that submission was placed upon the decision of the Supreme Court in Mrs. Elizabeth Dinshaw's case (supra) in which their lordships had extracted with approval the following paragraph from the judgment of the Court of Appeal in Re. H. (infants). (1965) 2 All England Reporter 912 :-

''The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing. The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child.''

9. We are not, in the present petition, called upon to examine the effect of the subsequent pronouncements of the Supreme Court on the ratio of the decisions rendered by their lordships in the Surinder Kaur and Elizabeth Dinshaw cases (supra). We say so because the subsequent decision of the Supreme Court in Sarita Sharma's case has taken note of the said two decisions also, while declaring that courts in this country cannot be guided entirely by the fact that one of the parents had violated an order passed by a competent court abroad or that the marriage between the parties had subsequent to the removal of the child to India been dissolved by a decree of divorce passed by any such court. The orders passed by any foreign court were held to be one of the factors relevant for determining whether or not the custody of the child should be transferred from one parent to the other, the paramount consideration all the time being the welfare of the child. That apart in Elizabeth Dinshaw's case, a competent court in the State of Michigan, USA had dissolved the marriage between the parties and granted custody and control of the minor child born out of the wedlock to the petitioner wife. Taking advantage of the visitation rights granted to him, the father of the child had picked up the minor from the school and secretly left the United States of America for India. This resulted in further proceedings before the court of Michigan in which arrest warrants were also issued against the father of the minor on the round of unlawfully taking and retaining the child outside the State. A Habeas Corpus petition was in that background filed before the Supreme Court in which their lordships while holding that matters relating to the custody of a minor child have to be decided on the sole and paramount criterion of what lies in the interest and the welfare of the minor, expressed their agreement with the principle of law stated by the Court of Appeal in the passage extracted earlier. On the facts of that case, however, the court, independently of the abstract proposition of law noticed by it, came to the conclusion that it was in the best interest of the minor that he should go back with his mother to the United States of America and continue there as a ward of the concerned court having jurisdiction in the State of Michigan. Suffice it to say that the legal position declared has been consistently in favor of the courts determining the issue regarding custody of the minor child on the solitary ground of the welfare of the child, questions of conflict of laws and jurisdictions and orders passed by foreign courts granting custody to one or the other parent thus taking a back seat. The courts have primarily addressed themselves to what lies in the interest of the minor rather than what a foreign court has directed. Reliance upon the ex parte interim order passed by the court in Canada does not, in that view, lend much assistance to the petitioner.

10. The next and the only other issue that falls for consideration then is whether it is in the interest of the minor to transfer his custody to the father so that he returns to Canada to resume his schooling there. The petitioner's case in this connection is that the child is a Canadian citizen and while living in India, she is a foreigner who enjoys no citizenship rights. That the child has lived in Canada from the time of her birth and was admitted to a school there and that if she is sent back to Canada in the custody of the father, she will have the advantage of having her father and the mother both available to her even though the two may be living separately. In India, the child will be deprived of her loving and caring father which will be psychologically disastrous for the young and impressionable mind. The petitioner's case also is that he will help the respondent wife to settle down in Canada and grant her a share in his property which will promote the interest of the child. Continuance of the child in the custody of the respondent, argues the father, tantamounts to international abduction which is an offence.

11. The respondent wife's case, on the other hand, is that the petitioner husband had no time for the minor whom he had been scolding at the slightest provocation. He is also accused of using foul language in front of the child and showing no interest in her school activities. It was also contended that the minor being a female child of tender age, it was in her interest to be in the custody of her mother in India rather than to be sent away to Canada where there is no one except an indifferent father to take care of her. The father's plea for custody must, therefore, be declined to save the child from the trauma of leading a forlorn, lonely and frustrated life away from a loving and caring mother whom she needs the most at this stage.

12. Having given our anxious consideration to the cases set up by the parties, we are of the opinion that the petitioner has not made out a case for transfer of custody of the child from the mother to him. A girl child of tender age is bound to shape better in the care of her mother especially when it is not the case of the petitioner that the environment in which the respondent is living in India is not conducive to such upbringing or that the child will not have proper schooling necessary for any care or that she may choose for herself. It is true that the father is financially better off than the mother with whom the child is presently living but then the superior financial position of the husband is no ground for change of custody. As observed by their lordships of the Supreme in Dhanwanti Joshi's case (supra), better financial position does not in itself provide a ground for disturbing the child from his/her mother's custody so long as the mother is giving good education or is capable of giving such education and so long as the child was doing well in her studies. The prospects of an immediate Canadian education which the petitioner father may be ready to provide for also cannot be a sufficient ground for shifting the custody of the child to the father ignoring the fact that the child has never stayed away from her mother and is used to her custody. The fact that the child is a Canadian citizen by birth is also of hardly any significance at this stage. That is because +she can go to Canada in her own right in future just as in Dhanwanti Joshi's case, their lordships held that the child who was an American citizen could go to America in future whenever he decided to do so. The child's continuance with the mother does not in our view deprive he of any advantage much less irreparably so. That health care is better in Canada than what it is in India, or that the child has no citizenship rights in this country, are considerations that are based on perceptions which can vary from person to person. There may be areas in which Canadians have an advantage over those living in this country but to say that children born to parents of Indian origin will not or cannot grow well in this country because of lack of some fringe benefits which the citizens of Canada enjoy may not be correct. We need not enumerate the advantages which the child will have if she stays with her mother in India, but the least that one can say is that even if the child were to migrate to Canada at any stage, the experience of being brought up in this country will be an advantage more than a liability.

13. In the result, this petition fails and is hereby dismissed. Consequently, the custody of the minor child, named Anika shall continue with the respondent mother till such time the court of Additional District Judge disposes of Guardian and Wards application filed by the respondent mother. We further direct that the said court shall expedite the disposal of the proceedings pending before it to ensure that final orders on the same are passed early but not later than 31st August, 2005. We make it clear that while doing so the court shall remain uninfluenced by any observation made by us in the body of this order.

14. No costs.