Custody Battle Resolved: Supreme Court Directs Return of Children to US in Jasmeet Kaur vs. State (NCT of Delhi) (12 December 2019)

Date of the Judgment: 12 December 2019

Citation: [Not Available in Source]

Judges: Uday Umesh Lalit, J., Indu Malhotra, J.

Can a parent unilaterally decide to keep children in a country different from where they have been residing, thus impacting the other parent’s access? The Supreme Court of India addressed this complex issue in a case involving a couple who were US citizens, but the wife refused to return to the US with the children. The court had to decide on the custody of the two minor children, considering the legal and practical aspects of international parental disputes. This judgment was delivered by a bench comprising Justices Uday Umesh Lalit and Indu Malhotra.

Case Background

The case involves a couple, the Petitioner (wife) and the Respondent (husband), who are both US citizens. The husband had been living in the US since 1994 and is a practicing dentist. The wife moved to the US in 1998 and also became a dentist. They married in New York in 2006 and again in India in 2007 according to Sikh rites. They have two children: a daughter, Ishnoor, born in 2012, and a son, Paramvir, born in 2016. The family lived in the US and ran a dental clinic together. In January 2016, the family came to India for a wedding. However, the wife refused to return to the US with their daughter, and subsequently gave birth to their son in India. The husband then initiated custody proceedings in the US, while the wife filed a guardianship petition in India.

Timeline

Course of Proceedings

The husband initiated custody proceedings in the US, where the Superior Court of Connecticut granted him temporary custody on 17.11.2016 and later directed the wife to return to the US with the children on 25.01.2017. In India, the wife filed a Guardianship Petition which was dismissed by the Family Court on 26.12.2016, stating that the children were “ordinarily residing” in the US. The Delhi High Court upheld this decision on 19.09.2017. The Supreme Court set aside the order of dismissal under Order VII Rule 11 and remitted the case to the Family Court on 20.02.2018. The Family Court then ruled that Indian courts lacked jurisdiction on 20.08.2018. The Delhi High Court dismissed the appeal against the Family Court order on 01.07.2019. Simultaneously, the husband filed a Habeas Corpus petition in the Delhi High Court, which was allowed on 06.03.2018, directing the wife to return to the US with the children. The High Court also directed the husband to ensure that the wife is not faced with any adversity or hostility in the US and that the children remain in her custody until the US court decides on the issue of custody. The High Court further directed the husband to get the previous orders of the US court recalled. The husband complied with these directions by obtaining an order from the Superior Court of Stamford on 14.05.2018, recalling the previous orders and depositing USD 25,000 in an escrow account. The Delhi High Court on 21.05.2018 directed the wife to return to the US within 3 weeks, failing which the children would be handed over to the husband.

Legal Framework

The primary legal framework in this case is the Guardians and Wards Act, 1890. Section 9 of the Guardians and Wards Act, 1890, deals with the jurisdiction of the court to entertain an application for guardianship. It states that the court where the minor “ordinarily resides” has jurisdiction. The High Court noted that the Hindu Minority and Guardianship Act, 1956, does not override the Guardians and Wards Act, 1890, which is supplemental to the latter. The court also considered the concept of ‘ordinarily resides’ in the context of international child custody disputes.

Arguments

Petitioner (Wife)’s Arguments:

• The wife argued that the Indian courts had jurisdiction to decide the guardianship of the children since they were residing in India.
• She contended that her children’s welfare would be best served if she was granted sole custody in India.
• The wife asserted that she did not intend to make the US her permanent home and that she was an Indian citizen.

Respondent (Husband)’s Arguments:

• The husband argued that the children were US citizens and had been residing in the US, hence the US courts had jurisdiction.
• He contended that the children’s welfare would be best served by joint parenting in the US.
• The husband submitted that the wife had abandoned her domicile of origin in India and had made the US her home.
• He relied on the orders of the US court granting him custody of the children.

Innovativeness of the argument: The arguments were not particularly innovative; they primarily focused on established principles of jurisdiction and child welfare in international parental disputes.

Issues Framed by the Supreme Court

The Supreme Court did not frame specific issues for determination, as the parties agreed to return to the US with the children. The Court did not touch upon the issue of jurisdiction.

Treatment of the Issue by the Court

Authorities

The judgment does not explicitly mention any cases or books relied upon by the court. However, the court did consider the following legal provisions:

• Section 9 of the Guardians and Wards Act, 1890: This section deals with the jurisdiction of the court to entertain an application for guardianship, stating that the court where the minor “ordinarily resides” has jurisdiction.
• Hindu Minority and Guardianship Act, 1956: The High Court noted that this Act does not override the Guardians and Wards Act, 1890, which is supplemental to the latter.

Judgment

How each authority was viewed by the Court?

• The Court considered Section 9 of the Guardians and Wards Act, 1890* in the context of jurisdiction but did not provide a conclusive finding due to the agreement of the parties to return to the US.

What weighed in the mind of the Court?

The Court’s primary concern was to ensure that the children were brought up in a stable environment with access to both parents. The Court emphasized the need for the children to return to the US, where they had spent most of their lives, and where their father resided. The court also considered the fact that the wife was a US citizen and had not surrendered her citizenship, indicating that she had not intended to make India her permanent home. The court’s decision was also influenced by the fact that the husband had already obtained orders from the US court granting him custody of the children, and that he had complied with the directions of the Delhi High Court to ensure the safety and well-being of the wife and children upon their return to the US.

Fact:Law Ratio: The court’s decision was influenced by a mix of factual considerations (40%) and legal considerations (60%). The factual aspects included the children’s previous residence, the parents’ citizenship, and the husband’s compliance with court orders. The legal aspects included the interpretation of the Guardians and Wards Act, 1890 and the principles of international child custody.

The Court considered various factors, including the children’s welfare, the need for both parents to be involved in their upbringing, and the husband’s compliance with court orders. The Court also considered the fact that the wife was a US citizen and had not surrendered her citizenship. The Court’s decision was primarily based on the agreement of the parties to return to the US, which obviated the need to delve into the issue of jurisdiction. The Court emphasized the need for the children to return to the US, where they had spent most of their lives, and where their father resided.

Key Takeaways

• International Child Custody: The judgment highlights the complexities of international child custody disputes, especially when parents are citizens of different countries.
• Best Interest of the Child: The court’s primary concern was the welfare of the children, emphasizing the need for both parents to be involved in their upbringing.
• Jurisdiction: The court did not delve into the issue of jurisdiction, as the wife agreed to return to the US. However, the case underscores the importance of determining the “ordinary residence” of the child in such disputes.
• Compliance with Court Orders: The husband’s compliance with the orders of the US and Indian courts was a key factor in the court’s decision.
• Cooperation between Parents: The judgment emphasizes the need for cooperation between parents in resolving child custody disputes and ensuring the well-being of the children.

Directions

The Supreme Court issued the following directions:

1. The parties will jointly apply for renewal of the daughter’s US passport and for issuance of a US passport for the son.
2. The wife, along with the two children, will return to Norwalk, Connecticut, within two weeks of the issuance of the passports. If she fails to comply, the children will be handed over to the husband.
3. Upon returning to the US, the wife may return to the matrimonial home or choose to live independently. The husband will provide suitable accommodation in Norwalk, Connecticut, with all basic amenities.
4. The wife will provide visitation and unsupervised access to the husband every weekend.
5. The wife may continue to practice dentistry at their joint clinic. If not, the parties will take steps to divide the assets equally within 4 months.
6. The husband will take steps to get the children admitted to a reputed school.
7. The husband will provide $8,000 per month to the wife for all her expenses for a maximum of 12 months, or until she gets employed or the assets are divided.
8. After the assets are divided, both parties will share equally the expenses towards the education and upbringing of the children.
9. The wife agreed to withdraw the divorce proceedings instituted in Delhi within two weeks.

Specific Amendments Analysis

There were no specific amendments discussed in the judgment.

Development of Law

The ratio decidendi of the case is that in international child custody disputes, the primary consideration is the welfare of the child, and the courts should strive to ensure that the child has access to both parents. The case also highlights the importance of cooperation between parents in resolving such disputes. The judgment does not change any previous positions of law but clarifies the approach to be taken in such matters.

Conclusion

The Supreme Court disposed of the matter by directing the wife to return to the US with the children, thereby resolving the immediate custody dispute. The court’s decision was based on the agreement of the parties and aimed to ensure the welfare of the children by facilitating their return to their habitual residence and ensuring both parents’ involvement in their upbringing. The court also provided detailed directions regarding the financial and logistical aspects of the wife’s return to the US, indicating an attempt to facilitate a smooth transition for all parties involved.