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
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.
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
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
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.