- 422

SMT. SURINDAll KAUR SANDHU

HARBAX SINGH SANDHU & ANR.

April II, 1984

[V.V. Cl!ANDRACHUD, C.J, AND SABYASACl!I MUKHARJf, J, j ·

Hindu MlnoTity ancl Guardiahshtp Act, J9S6·1Vec•iOn 6-Interpretalion of-Custody of the child. Conflict of Laws'-Jurisdlction 'Of the court to decid~ the questloa of custody of o minOr. child-who is a , British citizen while the parents are Indian .. citizens.

Appellant and Respondent No. I wore married io 1975 at Bodni Kalan District Paridkot, Punjab according•to Sikh rites. Soon after the marriage, they left for England, where a boy naed Pritpal Singh wa.s born to them on October 24,. 1976. Soon thr:rep.fter, their relationship came under a strain with the. reSult Respondent 1 'was trYing to negotiate witb ·• hitman to have tho appellant run over by a oar.

The Berkshire Police got.-=ent o(it rCsultiog in the Responderit's conviction and'Sentence for a period of three years. Ironically the' appellant. wife interovcncd and succeeded 1u obtaining a probation order for the man who-ha~ attn; iptcd to procure her murder; The husband was released on probation on February 4, 1982. The period of probation expired on December 24, 198i. On January 31, 1983, while the wife.was away at wor~, Respon dent No. 1 removed tho boy from England and brought him to India. On the same date, the appeUant~Wife obtaind an order under section 41 of tho Supreme Court Act, 1981 under which the boy became the ward of the Court with effect from that date. This order was codfirmed on July 22, 1983.

In tho meantime the appellant came to India in April, 198.3 and on 5.5.1983 filoda petition under section 97 of the. _Code of Criminal Procedure -in the Court of the learn_cd Judicial Magistrate first .class Jagraon praying for° tho custody o(, the child. The Respondent No .. l contested and took an objection . that under section 6 of' the Hinda Minority and Guardianship Act, 1956 he was the natural guardi_an .of the . . . minor.boy. Thecontention was accepted and thepetition was dismissed.

The_appellant went back to England to resume her work and obtained the confirmation order dated 22.7.1983 referred to afove. Armed with the said order sh$' returned to Iodf8 and filed a writ Petition in the- High_ Court of Punjab and Haryana. The Wrif Petition was dismissed on the grounds inter a/ia that her status in England fs that of a foreigner, factory worker and a wife.Jiving separately from e husband and h1ving no: relatives and as such the ohiid would have to live in lonely and dismal 5UrroUtldiogs in .England~ while it WOUid grOw in an atmosphere _Of seJf confidence and seff respect, if it was permi\teq tq Uve with its fa(her aq "and preg tu,

• • s. K. SANDHU v. H. s. SANDH{J (Chandrachud, c J.)

Hence the appeal arter ohtainiog special leave of the Court.

Allowing the appeal, the Court,

HELD : I. Section 6 of the Hindu Minority and' Guardianship Act, 1956 onstitutes the father as the natural gllardian of a mi'nor son. But that povision cannot upersede the paramOunt co_nsideration as to what is conducive to tho welfare of the minor. As the rnatters are presented to the Court the boy, from bis. own point of view, ought -to be in the

custoy of the mother.

[427AB]

2: 1 The modern theory of conflict of laws recognises 3nd, in any event, prefers the jurisdiction of the State whiCh has the most intimate contact with tho issues ari.sing in the case.

Jurisictian is not attraCtcd bY the operation or' creation of fortUitous circumstances such as the

circumstance as to whC:rc the child, whose custody is in 'issue,. is brought C or for the time being lodged. To allow the assumption of iurisdiclion by another State in such circumstances will only result in encouraging forumshopping. Ordinarily, jurisdiction must follow upon funCtional lines. That is to say, foi example, that in matters relating to matriony • and custody, the law of that place must govern which has the closest concern with the welJ.beine of the spouses and the welfare of the offsprings of marriage rhe spouses in this case had made BDgtand their D home where this boy was QOrn to them.

The_ father cannot deprive the English. Court of 'its jurisdiction to decide upon bis custody by , removing him .to India, not in the normal movement. of the mtrimonial home but, by an act which was gravely detrimental to the place of that home.

The fact that the. matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that Sta tc in order to make it. reasonable" and just for. tho Courts of that $tate to assume jurisdiction to E enforce obligations which were.incurred therein by the spouses. [427-CG)

2:2 The spouses had set up their matrimonial home in England . where the wife was working as a clerk and the husband as a bus driver.

The boy is a British citizen,. having been born in Bngfand, and he holds a British passport. It cannot be controverted that, in these cjrcumstances the England Court had jurisdiction to decide the question of his custody. p '

[427B-C] International Shoe Company V. Stale of Was.hington, 90 L.ED 95. [1945] quoted with approual. 3;1 Jo the instance case; (i) The welfare of the boy does not require that he should live with his . father or with the grand parents;

(ii) the "traumatic experience of~ cqoviction on a criminal chargo'' is not a factor in favour of the father especially when his conduci following jmmediately upon his release on probation shows that the experience has not chastened him, and (iii) The father is a man without a character who offered s9Iicitation to the commis&ion of his wife., s murdCr.

The wife, obtained an order of probation for him but, ho abused he'r magnanimity .by rtinniiig away with the boy soon after the probationary period was over. Even i~ that act., he displayed a singular lack of respect for law y obtaining a duplicate passport for the boy on an untrue represen- :tation that the original passport was lost. The Original passport was, to his knowledge, in the keeping of his wlfo. Iii Ibis background, tho

SUPRaMB COURT lulPORTS [1984] 3 s.C.it.

affliJ.ence of tbC husband's parents cannot be reg:irded as a circumstance of such overwhelming imporianCe as to tilt the balance in favour of the father on the question of what is l:ruely, . .for the \velfare of thC niinor. At any rate it .will not be les:i for the welfare of the minor if the lived with his mother. He was whi3kt; d away from her and it cannot be said that there are any circumHances to support the view that lbe new environment in which he is wrongruliy br"ought is more conducive to his welfare. He jsabout _8 years of age and thJ loving care of the mother ought not to be denied to him. The father is made of coarse stuff.

The mother earns an. income. of £ioo a week, which is certainly not 13.rge by English standards, but is not so low as not to e:iablo her totake reasonable . care of the boy. [426E•H}

3:2 It is the duty and functioff of the court to protect the wife C against the bur<ten cf litigating in an inconvenient foru; n which-she and her husba.nd bad left volunt<irily in orde'r to make their living in England, where they gave birth .to this unfortunate boy.

[427H]

(The court directed the custody of the child to the mother forthwith and awarded c.ost of Rs. 3000) [428B] Y

CRIMINAL APPELLATE JvRISDICTION : Criminal Appeal No. 183 of 1984.

Appeal by Special leave from the Judgment and Order dated the 26th August, 1983 of the Punjab and Haryana High Court in Cr. Writ Petition No. 392 of 1983.

C. M. Nayar and Vijay Jhanji for the Appellant:

Puran. Chand, Mrs. Naresh Bakshi and Miss Kailash Mehta for the Respondents.

F The Judgment of the Court was delivered by

CHANDRACHUD C. J., : The appellant, Surinder Kaur Sandhu, is the wife of respondent l; Harbax Singh Sandhu. Respondent 2 is the father of respondent l. , Appellant and respondent I were married in 1975 at Bodni Kalan,. District Faridkot, Punjab, according to Sikh rites. Soon after the m11_rriage they left for . England, where a boy named Pritpal Singh was born to them on October 24, 1976.

Within a short period after the bitth of the boy, the relationship lietween the spouses came under a strain resulting in 'a serious episode. The husband was trapped by the Berkshire Police who got the scent that he was negotiating with a hitman to have the wife run over by a car., The husband was convicted and sentenced . - . . . t

.. •· '

s. R;. SANDHU v. H. s. SANDHU (Chandrachud, c. J.) 42;

to a term of three years for that offence. Ironically, it was the wife who intervened and succeeded in obtaining a pr-0bation order for the man who had attempted to procure her murder. The husband was released on. probation on February 4, 1982.

The period of probation expired on December 24, 1982.

On January 31, I'l83, while the wife was away .at work, the husband remove<) the boy from England and brought him to India.

On the same date, the wife obtained an.order under section 41 of of the Supreme Court Act, 1981 under which the boy became the Ward of the Court with effect from that date. That order was confirmed on July 22, 1983 by Mrs. Justice Boo\h of the High Court of Justice (Family Division). By the said order, the husband was directed to haud over the custody of the ininor boy to the wife or her agent forthwith.

The wife came to-India ii} April 1983. On May 5, 1983 she filed a petition under section 97 oHhe Code of Criminal Procedure. in the Court of the learned Judicial Magistrate, First Class, Jagraon. She asked for the custody of her son, contending t)lat he was in the illegal custody of the respondents.

Section 97 authorises the Magistrate to direct a search to be made for persons wrongfully lonfined and, on their being found, to be produced _in the Court in order to facilitate the passing of Stich order as the

circumstances of the case may .require. The respondents relied. upon section 6 of the Hindu Minority and Guardianship Act, 1956, and opposed the petition on the ground that Respondent I . was the natural guardian of the minor boy. Accepting that contention, the learned Magistrate dismissed the petition; leaving the question of the custody of the child to be decided in an. appropriate proceeding. , The wifethen went back to England to resume her work and obtained the order dated July 22, 1983 to which we have already referred.

She came back to India once again, this time armed with _the aforesaid order of the English High Court. She then filed tb.e present writ petition in the High Court of Punjab and Haryana, asking for the production and custody of her minor son.

The learned single iudge of the High Court who dealt with th.e petition JUlide an excellent effort to bring about a rapproachement between the spouses but, , he did not succeed. He questioned the boy more than once and he even presi1aded the spouses to live together for a couple of days in the house 'or the lnspector General of Prisons; Haryana. The spouses reported back to him that they

G. ~

H •

 A were unable to resolve their differences.

.. F

' The iearn_ed Judge dismissed the wife's petition on the grounds, inter alia, that her sttus in England is that of a foreigner, a factory worker and a wife living separately from the' husband: that she had no relatives in England; and that, the child would have to live in lonely and dismal surroundings in England. On t]\e other hand, according to the learned. Judge, the father had gone through a traumatic experi, ence of a conviccion on a criminal charge; that he was back home i.n an atmosphere which welcomed him; that his parents were in affluent circumstances; and that, tpe child would grow iu an atmosphere of self-confidence and self

respect if he was permitted to live with them.

Some of these circumstances mentioned by the learned Judge are not beside the point but, their comparative assessment is diffi cult to accept as made,. For example, the 'traumatic expei; ience of a conviction on a criminal charge' i~ riot a factor in favour of the father, especially when his conduct following immediately upon his release on probation shows that the experience has 11ot chas tened him. On the whole, 'we are unable to agree that the welfare of the boy requires that he should live with his father or with llie grand-parents. The father is a man without a charscter who offered solicitation to the commission of his wife's murder. The wife obtained an order of probation for him but, he abused her magnanimity by running away with the boy soon after the probationary period was over. Even in that act, he displayed a singular la.ck of respect for Jaw by obtaining a duplicate passport for the boy on an untrue representation that the original passport was lost. The original passport was, to his knowledge, in the keeping; of his wife.

In this background, we do not. regard the aJlluence of the husband's par, nts to be 'a circumstance of such overwhelming importance as t,0 tilt the balance in favour of the father on the question of what is truly for the welfare of the minor. At any rate,· we are unable to agree that it will be less for the welfare of the minor if he lived with his mother. He was whisked away .froni ii.er and the question is whether, .there are any

circun, stances to support the view that -the new environment' in which he is wrongfully brought is niore conducive. fo his welfare.

He is about .8 years of age and the lovirig care of the mother ought not to be denied to him. The father is made of coarse stulf. The mother earns an income of £100 a week, whicl:i is certainly not large_by English standards, but is not so low as uot to enable her,

, ..

. -)

s: K..SANDHu v. it. s. S/\, NDHU (Chandrachud, c. J.)

to take reasonable care of the boy.

. Section 6 of the Hindu Minority and Guardia!Jship At. 1956 .-constitutes .the father as the natural guardian of a minor son. But that provision cannot supersede the pai:amount consideration as to what is conducive to tho welfare of the minor. As the matters are presented' to us to-day, the. boy, from his own point. of view, ought to be in the custody of the mother.

We may add !hat the spouses had set up their matrimonial home in England where the wife wasworking as a clerk and the husband as a bus driver. The boy is a British citizen, having .been borr in: England, and he holds a British passport.

It cannot" be controverted that, in these circumstances, the English Court had jurisdiction t.o decide the question of his custody. The modern theory of Conflict otLaws recognises and; in any .event, prefers the jurisdiction of the State which has the most intimate contact v.ith the issues arising iµ the .case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption Of jurisdiction by another State , ir, such circumstances will only remit in encouraging t'orum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that. in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the otfsprings of marriage. The spouses in this case had made Engjnd their .home where this boy was born to them: The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the. normal m9vement of the matrimonial )lome but, by an act which was gravely detrimental to the peace .of that home.

The fact that the matrimonial home of the spouses was m England, establishes sufficient contacts or1ies with that 'State in order to make it reasonable and jnst for the Courts of • that state to assume jurisdiction to enforce obligations which were incurred therein by the spouses.,. (See lntejnational Shoe Company

v. State of Washington, (l) which was not a matrimouial case but which is regarded as the fountainhead of the subsequent develop

mets ofjurisdictional issues like the one involved in the instant case.) It is our duty and function to protect the wife against the burden of litigating in an -inconvenient forum which she and her husband had left voluntarily in order to make their 1iv1ng in England, where they gave birth to this unfortunate boy .

(I) 90 L. Ed. 95 [1945]

_..,.

For these reasons, we set asid; the judgment of the High Court and direct that the custody of the child shall be handed over to the appellant-mother. lhat shall he done during the course of fuis day. ,

The High Court has referred to the evidence showing that the annual income of the father's family is in the range of Rs. 90,000.

That would justify an order directiug the respondents to pay a sum of Rs. 3,000 (three thousand) to the appellant for her costs of this appeal.

Order accordingly,

S. R.

Appeal allowed.