Mrs Elizabeth vs Mr Arvand M. Dinshaw and Anr.

Petitioner: Mrs. Elizabeth Dinshaw

V/s

Respondent: Mr. Arvand M. Dinshaw and anr.

Writ Petition (Crl. No. 270 of 1986 under Article 32 of the Constitution of India)

Citation: 1987 SCC (1) 42

Date of Judgment: 11/11/1986

Bench of Judges:

1. Balakrishna Eradi, J.
2. G.L. Oza, J.

Court: In the Supreme Court of India

Law Points:

The Guardians and Wards Act, 1890.

Introduction:

There are many cases where two persons living in two different countries get married. Children are also born to them and hence in the same family, there are citizens of different countries. When matrimonial disputes arise between such couples, both the parents fight for the responsibility of their child. Such cases happen where one parent takes away the child from the matrimonial home to a different territorial jurisdiction.

Section 9 of the Guardians and Wards Act, 1890 makes provisions regarding the jurisdiction of the Court to entertain a claim for grant of custody of a minor.

This case is related to the custodial rights of the parents of their minor child, Dustan after the parents got separated and divorced. The father is an Indian citizen and the mother is a citizen of the United States of America. A child was born to them in the State of Michigan where they were staying after marriage. When disputes arose between the couple and they got divorced, the custody of the minor child was given to the mother and specific visitation rights to the father. The problem arose when the father abducted the child secretly to India from the United States of America.

Facts of the Case

Mrs Elizabeth Dinshaw, the petitioner, in this case, was a citizen of the United States of America, residing in Michigan, employed as a case-worker for the state of Michigan in Genesse County Department of Social Services, Flint, Michigan.

Mr Arvand M. Dinshaw, the respondent, was an Indian by citizenship, who went to study at the Northern Michigan University in 1971.

Friendship grew between the petitioner and the respondent, who were both studying in the same university, which later developed into love between them.

26^th February 1972– The couple, Elizabeth Dinshaw and Arvand Dinshaw got married before a legal Magistrate in Negaunee, Michigan. Mr Arvand Dinshaw, hence after, settled down with his wife, more or less permanently in Rochester, Michigan, obtaining a permanent immigration visa and having a secured job as an Accountant for the Controller’s office in Genesse County.

30^th August 1978- A male child, Dustan was born to them in Rochester, State of Michigan of the United States of America where they were living after their marriage.

23^rd December 1980- Mrs Elizabeth Dinshaw, along with her baby boy, Dustan started staying separately from her husband and took up a residence in a woman’s shelter in Saginaw, Michigan as differences started arising between the couple late in that year.

2^nd January 1981- Mrs Elizabeth Dinshaw filed a divorce petition in the Circuit Court of the county of Saginaw, Michigan.

23^rd April 1982- The marriage between the respondent and the petitioner stood dissolved as the Circuit Court granted the decree of divorce to the petitioner as prayed for.

By the same decree, it was also decided that custody of their minor child, Dustan was being given to the petitioner, Mrs Elizabeth Dinshaw, the mother of the child.

The father, Mr Arvand Dinshaw was provided with certain visitation rights. It was decided that the father can visit the minor child from approximately 5 p.m. – 8 p.m. in the evening on the Wednesday of every week during which he does not get a weekend visitation in that week. It was further ordered that the father shall have visitation rights with his child on alternative weekends from 6 p.m. on Friday until the following Monday morning when he will be returning the child to the daycare centre.

On the subject of travelling of the child with his father in any place outside the territorial limits of the USA, it was specifically directed by the court that in such a case, the father has to make a petition before that Court mentioning clearly, the conditions as to why he intends to travel outside the country with the minor child. The court will then make a decision as to whether that travel will be in the best interests of the minor child and what conditions shall be ascribed to secure the return of the child.

11^th January 1986: Mr Arvand, taking advantage of the rights granted to him for visiting his child, chose a weekend and picked up the minor boy from his school on 10th January 1986 and on the very next day took the child along with him and, left the United States of America, unobserved, for India, at about 8.30 p.m. in the night. There had been no intimation to the court from his part regarding his leaving the United States of America along with the minor child, nor did the child’s mother, the petitioner had any knowledge about Mr Arvand Dinshaw leaving the USA perennially, for India.

It is also to be noted here that before leaving the United States of America, Mr Dinshaw, the respondent sold out all his immovable property consisting of his house. It was only at the last moment, from the airport that he sent a resignation letter for his job as an accountant.

13^th January 1986: The petitioner, Mrs Dinshaw, came to know that her child is missing when she came to collect the boy from the daycare centre on 13^th January, which was a Monday. She found that the father had not returned the child to the Daycare centre. She immediately moved the Michigan Circuit Court complaining against violation of the terms of its decree by the respondent.

Since the respondent had moved to India already, the warrant of arrest by the court against Mr Arvand Dinshaw could not be affected. The respondent, along with Dustan had moved to his ancestral home in Pune, India.

The petitioner, panicky, made every effort to reach her child through the American Consulate General in Bombay. It was when she visited the respondent’s familial home in Pune, she discovered that her child, Dustan and Mr Arvand was not there. The grandparents of the child reported that Dustan and his father might have gone to Kashmir and that they were not clued up about the exact whereabouts of the child and the respondent.

The petitioner, totally in distress, filed a petition in the Supreme Court of India, seeking issuance of the Writ of Habeas Corpus from the court. The Court directed the respondent to produce the minor child, Dustan in the court and thus to relinquish the custody of the minor child to his mother (the petitioner), as she was entitled to the rightful custody of the child under the decree of a competent foreign court.

Later on, under the notice of the court, the child was produced in the court by the respondent. The respondent had filed a counter-affidavit but no satisfactory explanation was stated there as to why he abducted the child from America to India secretly, without seeking any permission from the competent foreign court. The respondent’s only contention was that the grandfather of the minor child was seriously ill and thus he had brought the child to India for the grandfather to see the child in his ailing conditions.  He further stated that Dustan wanted to live with the respondent in India and so the respondent had admitted him in a school in Pune, India. Such an explanation given by the respondent was far from convincing and his conduct was held to be undoubtedly most reprehensible.

Issues

1. When can an Indian Court decide on the custodial and guardianship right of the parents of their minor child who is a foreign citizen?
2. Who will be given the custody, care and guardianship of a minor child, if the father is an Indian citizen living in a foreign state, with a permanent immigration visa, having married a foreign citizen there, and their child is born to them in the foreign land? Will the Indian law prevail, or the law of the foreign land?
3. Does the Guardians and Wards Act of 1890 contain any provisions regarding the guardianship and custodial rights of parents who are Indian citizens residing abroad?
4. Whether any mother (who is unemployed) can be given custodial rights of the child only on the basis that she is a loving and affectionate mother and can bring up her child well with good care and education?
5. Conditions on which the decree of the foreign court be held good before the Indian Court.
6. Can the conduct of the father be said to be reprehensible for his act? Can the father’s act of secretly taking the child to India be termed as the crime of ‘abduction’?
7. What is to be taken care of, the legal rights of the parents concerned, or the best interests of the child?
8. Will the opinion of the minor child be considered by the court of law?

Judgment

The judgment was delivered by J. Balakrishna Eradi immediately after hearing the arguments of both the parties. The writ petition was allowed and the court directed the forthwith restoration of the minor child, Dustan to his mother, the petitioner. The petitioner was at liberty to take her child back to the United States of America, where the child will be a ward of the concerned court in the state of Michigan of the USA. The passport of the minor child was returned to his mother thereafter.

It was open to the respondent, to move that court in Michigan for a review of the custody of the child if he is so advised.

The concerned authorities of the Government of India will provide all facilities to help the petitioner to take her child back to the USA as per the orders passed by the Supreme Court of India.

Rationale Behind the Judgment Given

Twice after interviewing the minor child, the honourable judges of the Apex Court came to the conclusion that Dustan was too tender for his age in order to take any independent decision as to which parent he should be staying with. The mother of the child, here the petitioner, was seen to be having bona fide love and affection for her child. She is the right fit to get the custody, care and guardianship of the minor child. Dustan is an American citizen by birth. He has not taken roots in India and is still acclimatized to the circumstances and environment in the place of his birth in the USA.

The court held that the conduct of the respondent was satisfactory and that he is not a fit and suitable person to be consigned with the guardianship of the child, being the father of the child. It had been held by the apex court that the matter is to be decided not considering the legal rights of the parents but on the sole and predominant criterion of what would best serve the welfare and the best interests of the child.

Thus, it is in the benefit of the child that he should go back to the USA along with his mother, the petitioner and continue as a ward there, under the concerned court in the State of Michigan.

In Re H. (infants) [(1966) 1 ALL ER 886], a similar question arose where it was decided that all courts in all countries must ensure that a parent, by removing the children out of their country discreetly, does not gain any upper-hand by his or her misconduct.

The court further ordered that it will be open to the respondent, to move the Saginaw County Circuit Court in the State of Michigan, if he is so advised, for the moderation of the order dated 11/02/1986, where his visitation rights got terminated, by tendering an unconditional apology to that court, and that he must be able to satisfy the court that there is genuine contrition for the wrongful act done on his part.

The Supreme Court of India requested the Circuit Court in Michigan to take a lenient view over the matter and pass appropriate orders keeping justice between both the parties and giving prime importance to the welfare of the child so that the child is not completely alienated from his father. The petitioner was also requested not to take a vindictive attitude over the issue and to forgive and forget the incident with regards to the best interests of the minor child. She was also requested to co-operate for the withdrawal of the warrants of the arrest outstanding against the respondent in case he approaches her with such a request.

The writ petition was accordingly disposed of.

Conclusion

The children are the biggest victims where the parents get separated or are divorced. After a divorce is granted, next comes the contest between the two parents as to who would be given the custody of their minor child. The courts always need to take care of the best interests of the child in order to give him or her a healthy childhood. The child may be living with one parent but he must not be alienated from the other parent. Proper visitation rights must be granted to the other parent so that a proper relationship is maintained between the children with both of his parents. All children deserve love, affection, proper care and most importantly, a good upbringing from both of their parents.

The courts need to determine critically as to which parent can provide the child with all his necessities which includes education and a proper lifestyle. However, the child’s opinion must also be considered by the courts. If the child is mature enough to understand and choose the parent he wants to stay with, the court must respect that decision even though he or she is a minor. The Supreme Court has rightly contended that the decision regarding a child’s custody is not to be regarded considering the legal rights of both the parties, but on the sole and predominant criterion of what would best serve the best interests and welfare of the minor child. Children are gifts of God and they do not understand the complications of adult relationships. They only deserve a good upbringing, which they must be given at any cost.