Case: Dhanwanti Joshi Vs. Madhav Unde

only because of the principle of comity but also because, on facts, - which were independently considered - it was in the interests of the child to be sent back to the native State. There the removal of the child by the father and the mothers application in India were within six months. In that context, this Court referred to H. (infants), Re (CA) which case, as pointed out by us above has been explained in L. Re ( 1971 (1) All(ER) 913, CA) as a case where the Court thought it fit to exercise its summary jurisdiction in the interests of the child. Be that as it may, the general principles laid down in McKee v. McKee and J v. C ( 1970 AC 668 1969 (2) WLR 540) and the distinction between summary and elaborate inquiries as stated in L. (infants), Re (CA) are today well settled in U.K., Canada, Australia and the USA. The same principles apply in our country. Therefore, nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984 - even assuming that the earlier orders passed in India do not operate as constructive res judicata. 31. The facts of the case are that when the respondent moved the courts in India and in the proceedings of 1986 for habeas corpus and under Guardians and Wards Act, the courts in India thought it best in the interests of the child to allow it to continue with the mother in India, and those orders have also become final. The Indian courts in 1993 or 1997, when the child had lived with his mother for nearly 12 years, or more, would not exercise a summary jurisdiction to return the child to USA on the ground that its removal from USA in 1984 was contrary to orders of US courts. 32. In this connection, it is necessary to refer to the Hague Convention of 1980 on "Civil Aspects of International Child Abduction". As of today, about 45 countries are parties to this Convention. India is not yet a signatory. Under the Convention, any child below 16 years who had been "wrongfully" removed or retained in another contracting State, could be returned back to the country from which the child had been removed, by application to a central authority. Under Article 16 of the Convention, if in the process, the issue goes before a court, the Convention prohibits the court from going into the merits of the welfare of the child. Article 12 requires the child to be sent back, but if a period of more than one year has lapsed from the date of removal to the date of commencement of the proceedings before the court, the child would still be returned unless it is demonstrated that the child is now settled in its new environment. Article 12 is subject to Article 13 and a return could be refused if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. In England, these aspects are covered by the Child Abduction and Custody Act, 1985. 33. So far as non-Convention countries are concerned, or where the removal related to a period before adopting the Convention, the law is that the court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration as stated in McKee v. McKee unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare, as explained in L., Re (CA). As recently as 1996-1997, it has been held in P (A minor) (Child Abduction : Non-Convention Country), Re ( 1996 (3) FCR 233, CA) by Ward, L.J. (1996 Current Law Year Book, pp. 165-166) that in deciding whether to order the return of a child who has been abducted from his or her country of habitual residence - which was not a party to the Hague Convention, 1980, - the courts overriding consideration must be the childs welfare. There is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the childs return unless a grave risk of harm was established. See also A (A minor) (Abduction : Non-Convention Country) (Re, The Times 3-7-97 by Ward, L.J. (CA) (quoted in Current Law, August 1997, p. 13). This answers the contention relating to removal of the child from USA. 34. Again as stated earlier, we do not prima facie find any wilful disobedience on the part of the appellant in not producing the child before the Bombay High Court warranting shifting of custody to the father. If the child, after its three-day experience with the father was not willing to come to the court, the appellant could not be faulted. 35. For the aforesaid reasons, the contention of the respondent based on violation of the earlier orders of the US courts or of the Bombay High Court for production of the child, is rejected. Point 3 36. Though we have held that the respondent is not entitled to permanent custody of the child, it is necessary to consider whether the respondent is to be given temporary custody or visitation rights. 37. On the facts of this case, we are not inclined to grant temporary custody to the respondent to take the child from India. That would affect the childs studies and further there is an ex parte order of the US Court giving permanent custody to the father and if that order is executed by the respondent, there is danger of the boy not returning to India thus frustrating any order that we are asked to pass giving temporary custody to the respondent.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]20. We are of the view that the High Court, in the present proceedings, was clearly in error in not even referring to the earlier orders and their binding nature on the respondent, insofar as the said orders considered that in the interests of the paramount welfare of the child, the custody was to be with the mother, the appellant. In the present proceedings started afresh in 1993 by the husband, one has to therefore start on the premise that the permanent custody was with the mother. It will be necessary for the respondent to establish facts subsequent to 1990 and before 1993 or 1997, which can amount to change in circumstances requiring custody of the child to be shifted from the appellant to theIt is no doubt true that orders relating to custody of children are by their very nature not final, but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interests of the child (RosyJacob v. Jacob A.Chakramakkal. However, we may state that in respect of orders as to custody already passed in favour of the appellant the doctrine of res judicata applies and the Family Court in the present proceedings cannot re-examine the facts which were formerly adjudicated between the parties on the issue of custody or are deemed to have been adjudicated. There must be proof of substantial change in the circumstances presenting a new case before the court. It must be established that the previous arrangement was not conducive to the childs welfare or that it has produced unsatisfactory results.From the above, it is clear that the High Court in the case before us was clearly in error in giving sole or more importance to the superior financial capacity of the husband as stated by him in his evidence. Assuming that his financial capacity is superior to that of his wife, that in our opinion cannot be the sole ground for disturbing the child from his mothers custody. As of today, the child is getting good education and is doing well in his studies. The proposal of an immediate American education which the father is prepared to finance cannot, in our opinion, be a sufficient ground for shifting the child to the fathers custody, ignoring the fact that for the last more than 12 years, the child has been in the mothers custody. There is also, no basis, having regard to the oral evidence adduced by the parties, for holding that the mother is permanently residing at Bombay leaving the child at Pune. The appellants categorical evidence that whenever she had to go to Bombay from Pune, her mother used to come from Bombay to Pune to take care of the child, leaves no doubt in our mind that the mother is residing mostly at Pune and goes to Bombay occasionally for very short periods in connection with certain official duties in her employment. The appellant has also reiterated before us that she has been residing at Pune and she has a flat there. As contended by her, the child is a citizen of USA by birth and he can go to USA in his own right in future, whenever it is so decided. Further the evidence of the respondent and of his brother that in the event the child is allowed to go to USA with the respondent, the respondents brother and the latters wife have agreed to proceed to USA, leaving their three daughters in India (of whom one has been married recently) or anticipating the migration of their daughters, appears to us to be too artificial and a make-believe affair rather than real. It appears to us that the effort on the part of the respondent here is only to impress the Court that the child will have company of these persons in case the child is allowed to proceed to USA. This evidence has not appealed toIn the result, therefore, we do not find any substantial change in the circumstances between 1990 and 1993 or 1997 which can justify the shift over the permanent custody of the child from the appellant to theSo far as non-Convention countries are concerned, or where the removal related to a period before adopting the Convention, the law is that the court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration as stated in McKee v. McKee unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare, as explained in L., Re (CA). As recently as 1996-1997, it has been held in P (A minor) (Child Abduction : Non-Convention Country), Re ( 1996 (3) FCR 233, CA) by Ward, L.J. (1996 Current Law Year Book, pp. 165-166) that in deciding whether to order the return of a child who has been abducted from his or her country of habitual residence - which was not a party to the Hague Convention, 1980, - the courts overriding consideration must be the childs welfare. There is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the childs return unless a grave risk of harm was established. See also A (A minor) (Abduction : Non-Convention Country) (Re, The Times 3-7-97 by Ward, L.J. (CA) (quoted in Current Law, August 1997, p. 13). This answers the contention relating to removal of the child fromAgain as stated earlier, we do not prima facie find any wilful disobedience on the part of the appellant in not producing the child before the Bombay High Court warranting shifting of custody to the father. If the child, after its three-day experience with the father was not willing to come to the court, the appellant could not beFor the aforesaid reasons, the contention of the respondent based on violation of the earlier orders of the US courts or of the Bombay High Court for production of the child, isOn the facts of this case, we are not inclined to grant temporary custody to the respondent to take the child from India. That would affect the childs studies and further there is an ex parte order of the US Court giving permanent custody to the father and if that order is executed by the respondent, there is danger of the boy not returning to India thus frustrating any order that we are asked to pass giving temporary custody to the