File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Sarita Sharma v/s Sushil Sharma (2000 3 SSC 14)

The present case relates mainly to the jurisdiction of English courts in matrimonial disputes. The present case involves the provision of section 6 of the Hindu minority and guardianship act. Section 6 constitutes father as the natural guardian of the children. The main issue which was raised in the present case was that whether taking away the custody of the children to India without the permission of the court would be illegal and can it be the ground to take back the custody.

The case makes a Indepth analysis about what all things and legal aspect should be considered in deciding the jurisdiction of the English courts. The case also makes a Indepth analysis on how family stature and position also play an important role in deciding the custody of the child.

Facts of the case
The facts of the case were that the husband Sushil Sharma initiated a divorce proceeding in the district court Texas USA. in the said proceeding orders were passed with respect to the care and custody of the children and also visitation rights were also given to the Sushil. When the said proceeding was pending in the court, they both lived together as husband and wife from 1996 to 1997.

Later they were again separated, this time Sarita took children with her. Later Sarita without the permission of the court took children with her to India. In the present case husband filed a writ petition in Delhi court to claim back the custody of his minor children and for this Sushil requested the court to issue writ of habeas corpus.

Decision of the district court Texas (USA)
After this incident court ordered Sarita to bring back children and also handed custodial rights to Sushil. The court also ordered Sarita for only visitation rights.

The very next day it was come to the notice of the Sushil that Sarita did not took children to the school and on being inquired by the police it was come to the notice that Sarita without the permission of the court had flown to Indian with children which was the gross violation of the orders of the court.

Later on, 12-8-1997 the court passed a divorce decree and also handed the sole custody of the children to Sushil.

Contention raised
main contention which was raised in the present case was that the Sushil filed a writ of habeas corpus in Delhi high court claiming the handover of his children from Sarita. Writ petition on the above matter was filed by Sushil on 9-9-1997.

Arguments on Behalf of Both the Parties
Arguments raised by Sarita
In response of the writ petition that was filed by Sushil Sarita contented that the day on which he took children to India both Sushil and Sarita were given possessory conservators rights as per the order by the American court. Hence, she was in the lawful custody on the day when she took them.

Further Sarita contended that she had bought children to India with full knowledge of Sushil. Further she contended that Sushil was not the right person to be handed over the custody of the children as he was alcoholic and violent as it was discussed by Sarita during divorce proceeding.

Arguments Raised By Sushil.
The respondent said that writ of habeas corpus should be issued against the Sarita as the custody of the child was obtained by her illegally. And also, there is a clear violation of the orders of the us court and hence writ of habeas corpus should be passed.

Decision Of The High Court
The high court allowed the writ petition and decided against Sarita and the court held that Sarita did wrong in not informing the American court while taking children out of England.

Ratio Behind The Court Judgment
The ratio behind the judgment was that the Sarita has committed in wrong by not taking permission from the court in removing the children out of the jurisdiction of the court. The ratio behind this judgement was that the court was having territorial jurisdiction and Sarita by not complying the order has braked the laws.

The high court rejected the contention of Sarita that the decree of divorce and custody of the children was obtained by Sushil by practicing fraud upon the court. The high court further states that even if Sarita thinks that the particular method that was used by the Sushil was not legal, she should have approached the American court.

Case Referred To Supreme Court
Arguments On Behalf Of Sarita (Petitioner)
The counsel stated that the writ of habeas corpus was issued wrong as the very purpose and the criteria of the writ was not fulfilled. Whenever the writ of habeas corpus is issued the court should consider the fact that whether person was kept in illegal custody or is detained against the wish. Further the petitioner submitted that the said writ cannot be issued to obtained the custody of minor children who is stating with his natural and legal mother. The appellant further said that the said decree was obtained by the respondent by suppressing material facts from the court.

Material Questions Discovered During Proceeding
During the divorce proceeding some material facts were discovered which somehow tilled the case in Favours of Sarita. It had come to the knowledge of the. court that before the separation that both of them along with their Sushil mother and children used to live in USA. It was also said that there were serious differences which existed between the two of them. Sushil was alcoholic and used violence against Sarita. Before coming to India, she used to have legal custody of children

Main Legal Question Involved In The Above Case
The primary question that was involved was that whether the custody became illegal as she had breached the order of the american court which clearly stated Sarita not to remove the children out of the jurisdiction of the court without the permission of the court.

Decision Of The Supreme Court:
Supreme Court After Going Through The Issue Gave The Decision As Follows:
Supreme court gave the decision in favors of Sarita and held that the welfare of the minor child should be given top most priority. The court further stated that respondent Sushil was staying with his mother aged 80-year-old and there is no one to take care of the minor children's.

The respondent also is a habitual drinker. The court further stated that even though both the children have US citizenship and there is a possibility that they may be able to get better education but it is doubtful that the respondent is in a position to take proper care of the children when they are so young. Out of them one Is a female child. She is aged
about 5 years.

Ordinarily, a female child should be allowed to remain with the mother so that she can be properly looked after. It is also not desirable that two children are separated from each other. If a female child has to stay with the mother it will be in the interest of both the children that they both stay with the mother.

the court stated that since both the children has the desire to stay with the mother. After considering the points the supreme court stated that it was not it was not proper for the high court to allow the writ petition of habeas corpus and directed the appellant to hand over the custody of the children to the respondent. With this reason the court allowed the appeal, set aside the judgement and order of the high court and dismissed the writ petition filed by the respondent.

Conclusion
In the above case the decision of the supreme court in Favour of Sarita was a good attempt to relook at the laws related to custody of the child. Just because the appellant does not take permission from the court in taking away the child to other country cannot give the right to take back the custody of the child from the lawful guardian.

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

Increased Age For Girls Marriage

Titile

It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Sexually Provocative Outfit Statement In...

Titile

Wednesday, Live Law reported that a Kerala court ruled that the Indian Penal Code Section 354, ...

UP Population Control Bill

Titile

Population control is a massive problem in our country therefore in view of this problem the Ut...

Privatisation Of Government Sector

Titile

Privatization of presidency Sector Although in today's time most of the services provided in ou...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly