Crl No 270 of 1986 Under Article 32 of the Constitution of India
178 Mrs K Hingorani for the Petitioner
Kapil Sibal Karanjawala Mrs Karanjawala and CV Subba Rao for the Respondents
The Judgment of the Court was delivered by BALAKRISHNA ERADI J
Immediately on conclusion of the hearing of arguments in the above Writ Petition on June 11 1986 having regard to the urgency of the matter we passed the following order We allow the Writ Petition and direct that the minor boy Dustan be restored forthwith to the custody of the petitioner ie the mother with liberty to the petitioner to take him to the United States
The child will be a ward of the concerned Court in Michigan and it will be open to the father first respondent herein to move that Court for a review of the custody of the child if he is so advised
Detailed reasons will follow
The passport of the child which is in deposit with the Registrar of this Court will be returned to the petitioner ie the mother of the child today itself
The concerned authori ties of the Govt
of India will afford all facilities to the mother to take the child back to the United States pursuant to the order passed by this Court
 We now proceed to state in this judgment our reasons in support of the order
The petitioner Mrs Elizabeth Dinshaw is a citizen of the United States of America residing in the State of Michi gan
She is employed as a case worker for the State of Michigan in Genesee County Department of Social Services Flint Michigan
The first respondent Mr Arvand M Dinshaw who is an Indian citizen was a student at Northern Michigan University in 1971
During that period the petitioner was also studying there
What started as a friendship between them on the campus later developed into love and the peti tioner was married to the first respondent in a civil mar riage before a legal magistrate in Negaunee Michigan on February 26 1972
The first respondent thereafter settled down in the United States more or less on a permanent basis having secured employment as an Accountant for the Control ler s Office in Genesee County
and having obtained a perma nent 179 immigration Visa
A male child Dustan was born to the couple on August 30 1978 in Rochester Michigan United States of America where they were having their marital home
Unfortunately differences arose between the two spouses late in the year 1980 and on December 23 1980 the peti tioner along with her son took up separate residence in a women s shelter in Saginaw Michigan
She filed a petition for divorce on January 2 1981 in the Circuit Court for the County of Saginaw Michigan
By a decree dated April 23 1982 the Circuit Court held that it had been established that there had been a breakdown in the marriage relationship to the extent that the objects of matrimony had been de stroyed and there remained no reasonable likelihood that the marriage could be preserved and hence it declared the mar riage as dissolved and granted a divorce to the petitioner as prayed for
By the same decree it was directed that the petitioner shall have the care custody and control of the minor child of the parties until he reaches the age of 18 years or until the further orders of that Court
The first respondent the father was given visitation rights by the decree and it was provided that he shall have visitation with the minor child from approximately 5 PM to 8 PM on the Wednesday of every week during which he does not have a weekend visitation
It was further ordered that the father shall have visitation with the minor child on alternate weekends from 5 PM on Friday until the following Monday morning when he should return the child to his day care centre
On the subject of travel with the minor child to any place outside the United States it was specifically direct ed in the decree as follows IT IS FURTHER ORDERED AND ADJUDGED THAT should the Defendant ARVAND M DINSHAW
wish to travel with the minor child outside the territorial limits of the United States
he shall bring a petition before this Court
setting forth the conditions under which he intends to leave the country with the minor child
The court shall then make a determina tion as to whether such travel is in the best interests of the minor child
and what condi tions shall be set forth to ensure the child s return
 Taking advantage of the weekend visitation rights grant ed to him by the above decree the first respondent picked up Dustan from his school on January 10 1986 and secretly left the United States of America for India on January 11 1986
at about 830 in the night
He 180 had not intimated the Court about his intention to take the child out of its jurisdiction and outside country nor had he given the slightest indication to the petitioner abouthis intention to leave the United States of America permanently for India
It may be stated that immediately before leaving for India the first respondent had sold away the immovable property consisting of a house and its premises owned by him in Seymour Lindan Michigan where he had been residing and it was only from the Airport that he posted a letter tender ing his resigation from his job as Accountant in the Coun try
In this context it is significant to recall that the decree of the Circuit Court contained the following direc tions 
IT IS FURTHER ORDERED AND ADJUDGED that the Defendant shall notify the Office of the Friend of the Court promptly concerning any changes in his address
The Court further finds that the Defendant is presently residing at 14155 Seymour Lindan Michigan
 It was only late in the day on Monday January 13 1986 that the petitioner came to know that the minor child Dustan had not been returned to the day care centre by the first respondent
She immediately moved the Michigan Circuit Court complaining against the violation by the first re spondent of the terms of its decree
A warrant of arrest was issued by the Michigan Circuit Court against the first respondent on January 16 1986 on the ground of unlawful taking and retaining the child outside the State
This was later followed by the issue of a Federal warrant of arrest against the first respondent on the January 28 1986 on the ground of unlawful flight to avoid prosecution
Since the first respondent had already come over to India with the minor child these warrants could not be executed in the
United States
The first respondent has his ancestral home in Pune where his parents are residing
The petitioner made frantic efforts through American Consulate General at Bombay to trace out the whereabouts of Dustan
She received a reply that the Consular Officer American Consulate General Bombay travelled to Pune on Friday March 7 1986 and though she was able to visit the residence of the first respond ent s parents and she spoke with them the minor child Dustan was not present there and the grand parents reported that Dustan and his father had gone North possible to Kashmir and that they were not aware of the exact where abouts of Dustan and the first respondent
The petitioner finding herself totally helpless to recover back the custody of her minor child whom she had brought up for more than 7 181 years thereafter arranged to have this petition tiled in this Court seeking the issuance of writ of Habeas Corpus directing the respondents to produce in Court her minor child Dustan and to handover his custody to her as the person entitled to his custody under the order of a compe tent foreign Court
In response to the notice issued by this Court directing production of the child before the Court the first respond ent appeared and produced the child in Court
He has filed a counter affidavit but significantly there is absolutely no satisfactory explanation given there for his conduct in abducting the child from America without seeking permission of the Court in that country of which the minor child was ward
His only explanation is that his father was seriously ill and he wanted that his father in his ailing condition to see Dustan
He has further stated that his son Dustan has told him on an enquiry that he would prefer to stay with him in Pune and hence he had got Dustan admitted in St Helena s School in Standard III
According to him he had not deliber ately done anything wrong in bringing Dustan with him from the United States and that now the minor child is well settled here in India and it will be in the interest of the child that he should be allowed to reside with him in India as per the child s desire
The conduct of the first respondent in taking the child from the custody of the person to whom it had been entrusted by the Court was undoubtedly most repprehensible
The expla nation sought to be given by him namely his father s ill ness is far from convincing and does not in any way justify such gross violation and contempt of the order of the Cir cuit Court in Michigan
Whenever a question arises before Court pertaining to the custody of a minor child the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor
We have twice inter viewed Dustan in our Chambers and talked with him
We found him to be too tender in age and totally immature to be able to form any independent opinion of his own as to which parent he should stay with
The child is an American citi zen
Excepting for the last few months that have elapsed since his being brought to India by the process of illegal abduction by the father he has spent the rest of his life in the United States of America and he was doing well in school there
In our considered opinion it will be in the best interests and welfare of Dustan that he should go back to the United States of America and continue his education there under the custody and guar 182 dianship of the mother to whom such custody and guardianship have been entrusted by a competent Court in that country
We are also satisfied that the petitioner who is the mother is full of genuine love and affection for the child and she can be safely trusted to lookafter him educate him and attend in every possible way to his proper upbringing
The child has not taken root in this country and he is still accus tomed and acclimatized to the conditions and environments obtaining in the place of his origin in the United States of America
The child s presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child to some school in Pune
The conduct of the father has not been such as to inspire confidence in us that he is a fit and suitable person to be entrusted with the custody and guardianship of the child for the present
In Re H infants  the Court of Appeal in England had occasion to consider a somewhat simi lar question
That case concerned the abduction to England of two minor boys who were American citizens
The father was a natural born American citizen and the mother though of Scottish origin had been resident for 20 years in the United States of America
They were divorced in 1953 by a decree in Mexico which embodied provisions entrusting the custody of the two bOys to the mother with liberal access to the father
By an amendment made in that order in December 1964 a provisions was incorporated that the boys should reside at all times in the State of New York and should at all times be under the control and jurisdiction of the State of New York
In March 1965 the mother removed the boys to England without having obtained the approval of the New York court and without having consulted the father she purchased a house in England with the intention of remaining there permanently and of cutting off all contacts with the father
She ignored an order made in June 1965 by the Supreme Court of New York State to return the boys there
On a motion on notice given by the father in the Chancery Division of the Court in England the trial  judge Cross J directed that since the children were American children and the American Court was the proper Court to decide the issue of custody and as it was the duty of courts in all coun tries to see that a parent doing wrong by removing children out of their country did not gain any advantage by his or her wrongdoing the Court without going into the merits of the question as to where and with whom the children should live would order that the children should go back to Ameri ca
In the appeal filed against the said judgment in the Court of Appeal Willmer 183 LJ while dismissing the appeal extracted with approval the following passage from the judgment of Cross J  The sudden and unauthorised removal of chil dren from one country to another is far too frequent nowadays and as it seems to me it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing
The Courts in all countries ought as I see it to be careful notto do anything to encourage this tendency
This substitution of self help for due process of law in this field can only harm the interests of wards general ly and a judge should as I see it pay regard to the orders of the proper foreign Court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child
 With respect we are in complete agreement with the aforesaid enunciation of the principles of law to be applied by the Courts in situations such as this
As already observed by us quite independently of this consideration we have come to the firm conclusion that it will be in the best interests of the minor child that he should go back with his mother to the United States of America and continue there as a ward of the concerned Court having jurisdiction in the State of Michigan
The first respondent has tendered before this Court in an affidavit filed by him an unconditional apology for having illegally brought Dustan over to India from the United States in violation of the order of the competent Court in that coun try
The proper step to be taken by him is to tender such an apology to the Court whose order he has violated
It was brought to our notice that by an order passed by the Circuit Court Saginaw Michigan on February 11 1986 the first respondent has been found to be in contempt of that Court for violation of its order and the Court has consequently terminated the visitation rights which had been conferred on the first respondent by the decree dated April 23 1982
It will be open to the first respondent if he is so advised to move the Saginaw County Circuit Court in the State of Michigan for modification of this order on tendering his unconditional apology to that Court and if he is able to satisfy that Court that there is genuine 184 contrition and regret on his part for the wrong that he has done we have no doubt that the Circuit Court will take a lenient view and pass appropriate orders working out justice between the parties keeping in mind the important aspect that it will not be in the interest of the minor child to completely alienate him from his father for whom the child has developed genuine affection
We have also no doubt that the petitioner will not take a vindictive attitude but would forget and forgive what has happened in the past and cooper ate with the father in the matter of enabling him to have restricted visitation rights in America with all necessary proper and adequate safeguards and that the petitioner would also extend her cooperation for the withdrawal of the war rants of arrest outstanding against the first respondent in case he approaches her with such a request
For the reasons stated above the Writ Petition is disposed of with the directions issued by our order dated June 11 1986
APJ Petition disposed of


Summary:
The petitioner a citizen of the United States of America residing Michigan was married to the first respondent an Indian citizen who after marriage settled down in the United States and secured employment
A male child was born to the couple in America
Difference arose between them and the petitioner alongwith her son took up separate residence
She tiled a petition for divorce in the Circuit Court for the country of saginaw Michigan which granted a decree holding that there had been a breakdown in the marriage relationship and declared tile marriage as dissolved
The decree also directed that the petitioner slab hove the care
custody and control of the minor child until he reaches the age of 18 years
The first respondent the father was given visitation rights by the decree
On the abject of travel with the minor child to any place outside the United States it was directed that only on a petition the Court shall make a determination as to whether such travel is in the best interest of the minor child and what conditions shall he set forth to ensure the child s return
The Court also directed that the lint respondent shall notify the Office of
the Friend of the Court promptly concerning any changes in his address
Taking advantage of the weekend visitation rights grant ed by the said decree the first respondent picked up the child from his school and secretly left America for India an January 11th 1986
He had not intimated the Court about his intention to take the child out of its jurisdiction and outside the country nor had he given the slightest indica tion to the petitioner about his intention to leave America permanently for India
Immediately before leaving for India the first respondent sold away his immovable property and it was only from the Airport that he posted a letter tendering his resignation from his Job
176 Coming to know that the minor child had not been re turned to the day care centre by the first respondent the petitioner moved the Circuit Court complaining against the violation by the first respondent of the terms of the Court s decree
The Court issued a warrant of arrest against the first respondent an the ground of unlawful taking and re taining the child outside the State followed by the issue of a Federal warrant of arrest on the ground of unlaw ful flight to avoid prosecution
Since the first respondent had already come over to India with the minor child these warrants could not he executed in the United States
The Consular Officer American Consulate General Bombay visit ed the residence of the first respondent s parents in Pune but the minor child was not present there and the grand parents reported that the child and his father had gone North possibly to Kashmir and that they were not aware of their exact whereabouts
Thereafter the petitioner flied a petition in this Court seeking the issuance of a writ of Habeas Corpus directing the respondents to produce in Court her minor child and to hand over custody to her as the person entitled to it under the order of a competent foreign Court
In response to the notice issued by this Court the first respondent appeared and produced the child in Court and filed a counter affidavit explaining his conduct the explanation tendered by him was that his father was serious ly ill and he wanted his father to see the child
It was further submitted that the child prefers to stay With him in Pune and hence he was admitted in a School there and that it will be in the interest of the child that he should he allowed to reside with him in India
Disposing of the petition HELD 1
Whenever a question arises before Court per taining to the custody of a minor child the matter is to he decided not on consideration of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor
181F 2
It is the duty of all Courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing
The Courts in all countries ought to be careful not to do anything to encourage the tendency of sudden and unauthorised removal of children from one country to another
This substitution of self help for due process of law in this field can only harm the interests of the wards generally and a judge should pay due regard to the orders of the proper foreign Court unless he is satis fied beyond reasonable doubt that to do so would inflict serious harm on the child
183B D 177 Re H infants 1966 I All ER 886 relied upon
The conduct of the first respondent in taking the child from the custody of the person to whom it had been entrusted by the Court was undoubtedly most repprehensible
The explanation sought to be given namely his father s illness is far from convincing and does not in any way justify such gross violation and contempt of the order of the Circuit Court in Michigan
181E 4
The child s presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child in some school
The conduct of the father has not been such as to inspire confidence in the Court that he is a fit and suitable person to be entrusted with the custody and guardianship of the child
182C 5
It will be in the best interest and welfare of the child that he should go back to the United States of AmeriCa and continue his education there under the custody and guardianship of the mother to whom such custody and guard ianship have been entrusted by a competent Court in that country
The petitioner who is the mother it full of genu ine love and affection for the child and she can be safely trusted to look after him educate him and attend in every possible way to his proper up bringing
The child has not taken root in this country and he is still accustomed and acclamatized to the place of his origin in the United States of America
181 H 182A B 6
The first respondent has tendered before this Court an unconditional apology
The proper step to be taken by him is to tender such an apology to the Court whose order he has violated
He has been found to be in contempt of the Circuit Court Saginaw Michigan for violation of its order and that Court has consequently terminated the visitation rights conferred on the first respondent
He may move that Court for modification of its order on tendering his unconditional apology to that Court
The petitioner should cooperate with the respondent in the matter of enabling him to have re stricted visitation rights in America and should also extend her cooperation for the withdrawal of the warrants of arrest outstanding against the first respondent
I83F 184C