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Case Summary: Dhanwanti Joshi v/s Madhav Unde

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 1967.

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 Bhagyawanti.

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 the child.

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 faulted with."

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 below"

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 mother.

The following points came into consideration:
  1. 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?
  2. 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?
  3. 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
Awarded certificate of Excellence
Authentication No: DC233859326330-4-1222

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