Young ones getting married with people from foreign countries. Children are
also then born in those families leading to people from different countries
living in a same family. Then for example whenever there is a matrimonial
conflict, many issues arise for several causes. In such circumstances, when one
parent takes out child out of the matrimonial home and relocates him or her to
another jurisdiction. Parties file suit in different jurisdictions, each one
with its own rules.
The respondent namely - Madhav Unde, married to appellant who was then in USA on
11.6.82 at Omaha, State of Nebraska in the U.S.A. On 19th June 1982, the
marriage was performed as per Hindu rituals. It is also seemed as the respondent
had earlier married to one woman named as Bhagyawanti in Nagpur on 20th April
The respondent later left for USA and obtained a divorce order against
Bhagyawanti in the trial court at Oakland in the State of Michigan on 25.10.1997
allegedly by way of misrepresentation. Bhagyawanti also filed petition 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. That would mean that the Indian Court
held that the US divorce decree dt. 25.10.1997 was not binding on the said
The appellant lived with the respondents in USA for 10 months after her
marriage. A male child was born in their family in USA named as Abhijeet. Due to
certain circumstances, the mother, and the child left Madhav, after the 35 days
of the child's birth. They have been involved in litigations both in USA and
India for the last 14 years. The respondent is continuing to live in USA while
the appellant and child have been living in India. The boy then studying in 8th
grade at Pune.
The respondent filed a divorce case in USA against the appellant and tried to
seek the custody the child. A divorce decree was passed and the next year, the
child reached India with the appellant's mother. The appellant proceeded from
USA to Australia and then reached India and joined her son. She then filed
Petition claimed maintenance for her and the child and for a declaration that
the divorce decree passed by the US Court on 23.9.83 was not binding on her and
for injunction against respondent from removing the child from her.
Court's Opinion and Analysis
According to the High court:
"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 p.m. and 6 p.m.
every day. Subject to the above, rule is discharged."
The next stage of proceedings was under the Guardian and wards Act, for the
permanent guardianship of her son and other reliefs. The appeal by respondent
was dismissed observing - "We have heard Mr. Ganesh learned counsel appearing on
behalf of the appellant t length and we find that there is no merit whatsoever
in the appeal. From what has been stated hereinabove it is very clear that the
appellant is fighting with the Respondent for over several years. The conduct of
the appellant clearly indicates that he is a much-married man and he had entered
into marriage with the Respondent by suppressing the fact of the first marriage
with a girl at Nagpur.
The earlier judgment of the Division Bench of this court clearly indicates that
the appellant had treated the Respondent with cruelty and the Respondent was
required to leave the matrimonial house with the child under great stress and
compulsion. The conduct of the appellant does not indicate that he is interested
in the welfare of the child, but the anxiety of the appellant seems to be to
seek custody of the child only a with a view to avoid payment of maintenance for
Apart from the merits of the claim, we must bear in mind that whatever may be,
the disputes between the parties the Court must consider in the proceedings
under the as to what is in the interest of the minor child. The minor child has
remained with the mother for last over four years and in our judgment, it would
not be in interest of the minor to be snatched away from the mother and the
order of the learned Single Judge appointing the mother as guardian could not be
The respondent filed case in the family court afresh for custody of the child.
The family court passed an order allowing the respondent's application and
granting him custody of the child to the respondent and dismissed appellant's
petition to declare her marriage with respondent as null & void.
The appellant preferred appeal to the high court. 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 the custody
of boy was given to respondent for 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 only passed over till
2.245 p.m. and then at 2.45 p.m. it was dismissed for non-prosecution. The
application set aside the same was dismissed on 4.7.97. It was also held the
order dt, 4.7.97 that the appellant-mother had no case on merits for retaining
custody of the child.
We have seen arguments on the petition filed for custody of the child and
appellant also stated that she does not want to declare the marriage as null and
void. Therefore, the earlier decree of divorce can be treated as final. The HC
did not give importance to the fact the that case is related to child who has
been living with appellant for more than 12 or more. It is a perfect case where
appeal should have been restored.
During the pendency of the appeal when temporary custody was given to the
respondent was not willing to accompany the mother to the HC, prima facie it
appears to us that there was no ground for initiating contempt proceedings
against her for not producing the child. Be that as it may, the said contempt
proceedings will be disposed of in accordance with law by the High Court. In any
event we direct recall of the bailable warrants issued against the appellant if
they are still pending.
Before hearing the case, the interview of the child was taken and found that he
was capable to understand the facts in which he was. He informed that he is not
interested to go to USA with his father and wants to continue his studies in
India till he completes his 10+ or graduations. He wants to be in a custody of
his mother and wants to become a veterinary doctor.
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 his 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 the boy to
respondent. Therefore, we do not find any error in the order passed by the Court
The respondent contended that the appellant had violated the court orders in USA
and brought the child in India and did not produce the child in HC and had
violated court direct orders and thus, she is disqualified from having custody
of the child. It was also said she has been living in Bombay while the child in
Pune and shows that she doesn't have the capacity to educate child in USA. The
husband led the evidence that his brother and brother's wife are ready to come
to USA to take care of the child only if child comes to the USA.
The other hand, appellant has contended that earlier orders are final, and child
has grown up with her for more than 12 years and she has the capacity to educate
him in USA and there is no body to take care of the child and that no one could
be substitute for the mother. She submitted that the respondent made efforts
taking away the child from her within 35 days of its birth and she had to leave
the house in USA with the child and the child was sent to India through her
The following points came into consideration:
- Could the family court and HC have ignored the orders passed in favor of
appellant in Habeas corpus and Could the respondent file a fresh case in the
family court in 1993 to claim custody and if so 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
ground to shift custody?
- Do the fact relating to the appellant bringing away the child to India
in 1984 contrary to an order of the US Court or not producing the child in
the Bombay High Court have any bearing on the decision the Courts in India
while deciding about the paramount welfare of the child in 1993 or 1997?
- In case the respondent is not entitled to permanent custody, is he
entitled to temporary custody or visitation rights.
It is clear that appellant has an order in her favour of the Bombay High Court,
giving her the custody of the child while dismissing the petition filed by the
respondent. The appellant then has also order in a favour passed again under the
guardian and wards act.
It is no doubt that orders relating to the custody of the child are not final,
but in nature to the modification in future time upon proof of change of
situations requiring the change of custody but such change in custody must be
proved in the interest of the child.
The point appeal to the family court in the High Court by the respondent that he
is financially well and can take care of the child and gave him superior
education in USA the judge stated that:
"....the welfare of the child is not to be measured by money alone nor by
physical comfort only. The word 'welfare' must be taken in its wides sense. The
moral and religious welfare must be considered as well as its physical
well-being. Nor can the ties of affection be disregarded."
From this it is clear that High Court was erred in giving more importance to the
financial capacity of the husband stated by him assuming that financial capacity
is superior to that of the mother. Also ignoring the fact that for the last more
than 12 years the child has been residing with the mother add the mother is
permanently residing at Bombay leaving the child in Pune the mother provided
evidence that whenever she went to Bombay from Pune her mother used to come from
Bombay to Pune to take care of the child which show is that the mother is
residing in Pune most of the time and goes to Bombay occasionally for very short
period due to her employment.
It is also said that the child is a citizen of USA by both of the parents, and
he can go to USA in his own whenever he decides in the future. Further the
evidence of the respondent and of his brother that they will take care of the
child when child will go to USA leaving their own 3 daughters in India and
anticipating the migration of daughters appears to be too senseless rather than
real and thus, it can be seen that the efforts made by the respondent is only to
impress the court that the child will have company of the people in case child
is allowed to go to USA.
The fact that also when the respondent moves the courts in India in the
proceedings for habeas corpus under guardian and wards act the court in India
thought it is best in the interest of the child to allow it to continue with the
mother in India and those orders also have become final. As stated earlier the
court did not find it prima facie any disobedience on the part of appellant for
not producing the child before the Bombay High Court if the child after 3 days
experience with father was not willing to come to the court the peel and could
not be at fault.
Though the court held at the respondent is not entitled to have the permanent
custody of the child it is necessary to consider the respondent can be given
temporary custody or the visitation right.
The right of visitation to the
respondent is given as long as he want to visit the child in India but in case
the respondent is coming to India he have to in advance at least 4 weeks right
to his counsel with address to the appellant and if it is done the appellant
shall respond in writing and then that visitation rights for 3 hours per day for
3 weeks to be agreed by counsel and appellant.
The counsel or their
representatives must be present at the venue or near the venue and respondent
shall not be entitled to take the child outside of the said venue.
The respondent's application for the custody of the child is dismissed and the
order in the petition for declaring the marriage of the appellant and respondent
null and void is dismissed as well.
Award Winning Article Is Written By: Mr.Madhav Singh Dhakad
Authentication No: DC233859326330-4-1222