Judgment Case ID: 4793

Judgment:
N: 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 Jhani for the Appellant. Puran Chand	 Mrs. Naresh Bakshi and Miss Kailash Mehta for the Respondents The Judgment of the Court was delivered by CHANDRACHUD C. J. 	: The appellant	 Surinder kaur Sandhu	 is the wife of respondent 1	 Harbax Singh Sandhu. Respondent 2 is the father of respondent 1 Appellant and respondent 1 were married in 1975 at Bodni Kalan	 District Faridkot	 Punjab	 according to Sikh rites. Soon after the marriage they left for England	 where a boy named Pritpal Singh was born to them on October 24	 1976. Within a short period after the birth of the boy	 the relationship between 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 425 to a term of three years for that offence. Ironically	 it was the wife who intervened and succeeded in obtaining a probation 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	 1983	 while the wife was away at work	 the husband removed the boy from England and brought him to India. On the same date	 the wife obtained an order under section 41 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 Booth of the High Court of Justice (Family Division). By the said order	 the husband was directed to hand over the custody of the minor boy to the wife or her agent forthwith. The wife came to India in April 1983. On May 5	 1983 she filed a petition under section 97 of the Code of Criminal Procedure in the Court of the learned Judicial Magistrate	 First Class	 Jagraon. She asked for the custody of her son	 contending that he was in the illegal custody of the respondents. Section 97 authorises the Magistrate to direct a search to be made for persons wrongfully confined and	 on their being found	 to be produced in the Court in order to facilitate the passing of such 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 1 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 wife then 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 the present writ petition in the High Court of Punjab and Haryana	 asking for the production and custody of her minor son. The learned single Judge of the High Court who dealt with the petition made an excellent effort to bring about rapprochement between the spouses but	 he did not succeed. He questioned the boy more than once and he even presided the spouses to live together for a couple of days in the house of the Inspector General of Prisons	 Haryana. The spouses reported back to him that they 426 were unable to resolve their differences. The learned Judge dismissed the wife 's petition on the grounds	 inter alia	 that her status 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 the other hand	 according to the learned Judge	 the father had gone through a traumatic experience of a conviction on a criminal charge; that he was back home in an atmosphere which welcomed him; that his parents were in affluent circumstances; and that	 the child would grow in 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 difficult to accept as made. For example	 the `traumatic experience of a conviction on a criminal charge ' is not a factor in favour of the father	 especially when his conduct following immediately upon his release on probation shows that the experience has not chastened 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 the grand parents. The father is a man without a character 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 lack of respect for law 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 affluence of the husband 's parents to be a circumstance of such overwhelming importance as to 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 from her and the question is whether	 there are any circumstances to support the view that the new environment in which he is wrongfully brought is more conducive to his welfare. He is about 8 years of age and the 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 $100 a week	 which is certainly not large by English standards	 but is not so low as not to enable her 427 to take reasonable care of the boy. Section 6 of the Hindu Minority and Guardianship Act	 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the 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 that 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 England	 and he holds a British passport. It cannot be controverted that	 in these circumstances	 the English Court had jurisdiction to decide the question of his custody. The modern theory of Conflict of Laws recognises and	 in any event	 prefers the jurisdiction of the State which has the most intimate contact with the issues arising in 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 in such circumstances will only result in encouraging forum 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 offsprings of marriage. The spouses in this case had made England 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 movement of the matrimonial home but	 by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England	 establishes sufficient contacts or ties with that State in order to make it reasonable and just for the Courts of that state to assume jurisdiction to enforce obligations which were incurred therein by the spouses. (See International Shoe Company vs State of Washington (1) which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional 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 living in England	 where they gave birth to this unfortunate boy. 428 For these reasons	 we set aside the judgment of the High Court and direct that the custody of the child shall be handed over to the appellant mother. that shall be done during the course of this 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 directing 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.

Summary:
Appellant and Respondent No.1 were married in 1975 at Bodni Kalan District Faridkot	 Punjab according to Sikh rites. Soon after the marriage	 they left for England	 where a boy named Pritpal Singh was born to them on October 24	 1976. Soon thereafter	 their relationship came under a strain with the result Respondent 1 was trying to negotiate with a hitman to have the appellant run over by a car. The Berkshire Police got scent of it resulting in the Respondent 's conviction and sentence for a period of three years. Ironically the appellant wife intervened and succeeded in obtaining a probation 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	 1983	 while the wife was away at work	 Respondent No. 1 removed the boy from England and brought him to India. On the same date	 the appellant wife obtained an order under section 41 of the Supreme Court Act	 1981 under which the boy became the ward of the Court with effect from that date. This order was confirmed on July 22	 1983. In the meantime the appellant came to India in April	 1983 and on 5.5.1983 filed a petition under section 97 of the Code of Criminal Procedure in the Court of the learned Judicial Magistrate first class Jagraon praying for the custody of the child. The Respondent No. 1 contested and took an objection that under section 6 of the Hindu Minority and Guardianship Act	 1956 he was the natural guardian of the minor boy. The contention was accepted and the petition was dismissed. The appellant went back to England to resume her work and obtained the confirmation order dated 22.7.1983 referred to above. Armed with the said order she returned to India and filed a writ Petition in the High Court of Punjab and Haryana. The Writ Petition was dismissed on the grounds inter alia that her status in England is that of a foreigner	 factory worker and a wife living separately from the husband and having no relatives and as such the child would have to live in lonely and dismal surroundings in England	 while it would grow in an atmosphere of self confidence and self respect	 if it was permitted to live with its father and grand parents: 423 Hence the appeal after obtaining special leave of the Court. Allowing the appeal	 the Court	 ^ HELD: 1. Section 6 of the Hindu Minority and Guardianship Act	 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. As the matters are presented to the Court the boy	 from his own point of view	 ought to be in the custody of the mother. [427A B] 2:1 The modern theory of conflict of laws recognises and	 in any event	 prefers the jurisdiction of the State which has the most intimate contact with the issues arising in 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 in such circumstances will only result in encouraging forum 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 offsprings of marriage The spouses in this case. had made England 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 movement of the matrimonial 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 State in order to make it reasonable and just for the Courts of that State to assume jurisdiction to 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 England	 and he holds a British passport. It cannot be controverted that	 in these circumstances the England Court had jurisdiction to decide the question of his custody.[427B C] International Shoe Company vs State of Washington	 ; [1945] quoted with approval. 3:1 In 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 a conviction on a criminal charge" is not a factor in favour of the father especially when his conduct following immediately 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 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 lack of respect for law 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	 the 424 affluence of the husband 's parents cannot be regarded as a circumstance of such overwhelming importance as to tilt the balance in favour of the father on the question of what is truly for the welfare of the minor. At any rate it will not be less for the welfare of the minor if the lived with his mother. He was whisked away from her and it cannot be said that there are any circumstance to support the view that the new environment in which he is wrongfully brought is more conducive to his welfare. He is about 8 years of age and the 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 $100 a week	 which is certainly not large by English standards	 but is not so low as not to enable her to take reasonable care of the boy. [426E H] 3:2 It is the duty and function of the court 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 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 cost of Rs. 3000) [428B]