TMI Blog1997 (11) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows:- The respondent Mr.Madhav Under married the appellant (who was then in U.S.A) on 11.6.82 at Omaha, State of Nebraska in the U.S.A.. On 19.6.1982, a separate marriage ceremony as per Hindu rituals was performed. It appears that the respondent had earlier married one Bhagyawanti at Nagpur on 20.4.1967. The respondent later left for USA and obtained an exparte divorce order against Bhagyawanti in the trial court at Oakland in the State of Michigan on 25.10.1997 allegedly by way of misrepresentation. (Later Bhagyawanti moved that Court for vacation of that order). The said Bhagyawanti also filed petition No.101/81 in the District Court, Nagpur and claimed that the decree obtained by respondent in USA was void and based on misrepresentation of facts and she claimed for divorce maintenance and the reliefs. She succeeded in that case and a fresh divorce decree was passed by the Nagpur Court on 11.6.84 relying upon Smt. Satya vs. Tej Singh [1975 (1) SCC 120]. That would mean that the Indian Court held that the US divorce decree dt. 25.10.1997 was not binding on the said Bhagyawanti. The appellant lived with the respondents in USA for 10 months after her marriage on 11.6.198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 86 and custody was granted to the appellant by the High 'court. The Court said In a elaborate order); Therefore, taking the totally of circumstances into consideration, we find allowed to retain the custody for the present and at the stage. The interim Custody of Abhijeet be handed over to the mother Dhanwanti forthwith. The petitioner-father-Madhav will the right of visiting between 4.000 p.m. and 6 p.m. every day. Subject to the above, rule is discharged. (The permanent custody order of UDS Court dated 25.4.86 in favour of the husband is after this dated. B Social leaves petition No. 1290 of 1986 filled by respondent was dismissed on 8.5.1986. We come to the next stage of proceedings under the Guardian and wards Act, and eye 13 of the Hindu Minority Guardianship Act, 1890) filed by the appellant for permanent guardianship of the person/property of her son and other reliefs. The Court appointed her as permanent Lawful guardian of the person/property of the child or 20.8.1986. This was an exparte order in favour of the appellant-wife. The application filed by respondent for setting aside the same was dismissed on 23.1.1987 by the trial court. Appeal No. 1313 of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 985 filed earlier by the appellant in the City Civil Court regarding declaration that her marriage was void, which was transferred to the Family Court. The Family Court passed an order dt. 1.12.95 allowing the respondent's application D9 of 1993 and granting him custody of the child to the respondent and dismissed appellant's M.J.Petition No.985 of 1985 filed to declare her marriage with respondent as null void. The appellant preferred appeal to the High Court. Stay was granted. It appears, during the hearing of the appeal, the respondent was given custody of the child for 4 days but on the first day the boy ran away from the respondent and was traced, and then all the parties met at a police station and the custody of the boy was given to the respondent for three days. The boy was later taken by respondent to his village called Baddlapur in Maharashtra for those three days. The appellant's appeals were listed after vacation in the first week for 9th June. It is the case of the appellant that the case was not listed on 9th. it was listed on 10th June, 1997, and she had no notice and when the Advocate requested the court for time, the case was not adjourned but was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the hearing of the case, we interviewed the boy in Chambers and found that he was quite intelligent and was able to understand the facts and circumstances in which he was placed. He informed us that he was not inclined to go with his father to USA and he wants to continue his studies in India till he completes 10-2 or he finishes his graduation. He feels that he will then be in a position to decide whether to go to USA for higher studies. He wants to continue to be in the custody of his mother. He told us that his desire is to become a Veterinary doctor. Parties counsel on both sides wanted us to dispose of the custody matter on merits. The High Court while holding that the appellant had no case on merits, has given only one reason for granting custody to the father. it stated that the father. Who has acquired citizenship in America is well-placed in is career. The boy is nearing the age of 14. The paramount interest of a boy aged 14 years of age is definitely his future education and career. The further education of the boy whose father is well-placed in America will be comparatively superior. The lower Court took note of this circumstance and granted custody of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex parte orders passed in her favour and against the respondent. This operated as res judicata or estoppel. She also contended that when the child was not willing to come before the Bombay High Court in view of his unpleasant' experience with the father for 3 days when the Bombay Court gave custody to the father, she could not be found fault with for not bringing the child to the Court and that fact cannot also be a ground for shifting custody to the respondent. On these submissions, the following points arise for consideration: (1) Could the Family Court and High Court have ignored the orders passed in favour of the appellant in the Habeas Corpus Case on 15.4.86 and the exparte order in the Guardian Wards Act case dated 23.11.87 and the orders of refusal of the High Court or Supreme Court in 1990 to set aside the latter orders and could the respondent file a fresh case in the Family Court in 1993 to claim custody, and if so is whether there is proof of changed circumstances between 1990 and 1993 or 1997 warranting the shifting of custody to the respondent-father, and whether the capacity of the respondent to give education to the child in USA could alone be sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rests of the child [Rosy Jacob vs. Jacob a. Chakramakkal (1973 (1) SCC 840)]. However, we may state that in respect of orders as to custody already passed in favour of the appellant the doctrine of res judicata applies and the family Court in the present proceedings cannot re-examine the facts which were formerly adjudicated between the parties on the issue of custody or are deemed to have been adjudicated. There must be proof of substantial change in the circumstances presenting anew case before the court. It must be established that the previous arrangement was not conductive to the child's welfare or that it has produced unsatisfactory results. Ormerod L.J. pointed out in S vs. W [(1981) 11 Fam.Law 21 (82) {CA)] that the status quo argument depends for its strength wholly and entirely on whether the status quo is satisfactory or not, the more satisfactory the status quo, the stronger the argument for not interfering. The less satisfactory the status quo, the less one requires before deciding to change . We shall next consider the point which solely appealed to the Family Court and the High Court in the present proceedings namely that the respondent is financially well- o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt in our mind that the mother is residing mostly at Pune and goes to Bombay occasionally for very short periods in connection with certain official duties in her employment. the appellant has also reiterated before us that she has been residing at Pune and she has a flat there. As contended by her, the child is a citizen of USA by both and he can go to USA in his own right in future whenever it is so decided. Further the evidence of the respondent and of his brother that in the event the child is allowed to go to USA with the respondent, the respondent's brother and the latter's wife have agreed to proceed to USA, leaving their three daughters in India (of whom o e has been married recently) or anticipating the migration of their daughters, appears to us to be too artificial and a make believe affair rather than real. It appears to us that the effort on the part of the respondent here is only to impress the Court that the child will have company of these persons in case the child is allowed to proceed to USA. This evidence has not appealed to us. In the result, therefore, we do not find any substantial change in the circumstances between 1990 and 1993 or 1997 which can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down the law for Canada and U.K. has been consistently followed in latter cases. This view was reiterated by the House of Lords in vs. C [1970 AC 668]. This is the also in USA (see 24 American Jurisprudence, para 1001) and Australia. (See Khamis vs. Khamis) [(1978) 4 Fam. L.R. 410 (full Court (Aus)]. However, there is an apparent contradiction between the above view and the one expressed in ReH. (infants) 1996 (1) All E.R. 886 (CA) and in ReE (an infant) 1967 (1) All E.R. 881 to the effect that the Court in the country to which he child is removed will send back the child to the country from which the child has been removed. This apparent conflict is explained and resolved by the Court of Appeal in 1974 in ReL. (minor) (Wardship : Jurisdiction): 1974 (1) All E.R. 913 (CA) and in RER (Minors) (Wardship : Jurisdiction) : 1974 (1) All e.R. 913 (CA) and in ReR (Minors) (Wardship Jurisdiction) 1981 (2) FLR 416 (CA). It was held by the Court of Appeal in ReL that the view in McKee vs. McKee is still the correct view and that the limited question which arose in the latter decisions was whether the Court in the country to which the child was removed could conduct (a) a summary inquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ReR (Minors) (wardship: Jurisdiction) 1981 (2) FLR 416 (CA) it has been firmly held that the concept of forum conveniens has no place in wardship jurisdiction. We may here state that this Court in Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw Another (1987 Z(1) SCC 42), while dealing with a child removed by the father from USA contrary to the custody orders of the US Court directed that the child be sent back to USA to the mother not only because of the principle of comity but also because, on facts, - which were independently considered - it was in the interests of the child to be sent back to the native state. There the removal of the child by the father and the mother's application in India were within six months. In that context, this Court referred to ReH. (infants), 1966 (1) All ER 886 (CA) which case, as pointed out by us above has been explained in ReL (1974 (1) ALL ER 913) as a case where the Court thought it fit to exercise its summary Jurisdiction in the interests of the child. Be that as it may, the general principles laid down in Mckee vs. McKee (1951 AC 3351) and Jvs. C (1970 AC 668) and the distinction between summary and elaborate inquiries as stated in ReL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rits bearing the welfare o the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration as stated in McKee vs. McKLee (1951 AC 351), unless the court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare, as explained in ReL 1974 (1) All ER 193 (CA). As recently as 1996-1997, it has been held in P(A Minor) (Child Abduction: Non Convention Country), Re: (1996 (3) FCR 233 (CA) by Ward, LJ 1996 (Current Law) (Year Book) (p. 165-166) that in deciding whether to order the return of a child who has been abducted from his or her country of habitual residence-which was not a party to the Hague Convention, 1980, - the Courts overriding consideration must be the child's welfare. There is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the child's return unless a grave risk of harm was established. She also A(A minor) (Abduction : Non-Convention Country) (re, The Times 3-7-97 by Ward LJ (CA) (quoted in Current Law Aug. 1997, P.13). This answers the contention relating to removal of the child from USA. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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