Court: DELHI HIGH COURT
Bench: JUSTICE Mr. Malik Sharief-Ud-Din and Mr. Dalveer Bhandari
KALA AGGARWAL Vs. SURAJ PRAKASH AGGARWAL AND OTHERS On 27 March 1992
Petition filed under Art. 32 before Supreme Court—Transferred—Petitioner divorced from Resp. 1 by decree passed by Court of U.S.A.—Being appointed managing conservator of children—Resp. as possessory conservator—Res. brought children to India—Petition for custody––Children not wanted to live with petitioner mother—Custody granted to Father.
The petitioner had filed a petition under Art. 32 of the Constitution of India for the issuance of an appropriate writ, order or direction in the nature of habeas corpus before the Supreme Court of India. The petitioner prayed for the custody of her two minor children who, according toher, are in illegal custody of the respondents, because the custody was granted to the petitioner by a divorce decree dated 10.2.1988 passed by the Judge Don Koon of the Judicial District Court, 255, Judicial District Dallas County, Texas, U.S.A.
2. This petition came up for admission hearing before the Supreme Court on 1st May, 1991. On that day, the Supreme Court ordered that this petition shall be transferred to this Court, and dealt with as the one under Article 226 of the Constitution in accordance with law. That is how this petition is being dealt by this Court.
3. The petitioner alleged that their two minor children, daughter Sonika now aged about 12 years and son Ravi aged about 5 years are in illegal custody of respondent No. 1 Suraj Prakash Aggarwal, father of the children and Smt. Satyawati, their grand mother. Brief facts relevant for the disposal of this petition are set out as under.
4. On 15-9-78, the petitioner got married to the respondent according to Hindu rites in Delhi. The marriage was registered on 15-9-78 under the Hindu Marriage Act, 1955. The petitioner was living and working in the United States of America before the marriage and immediately thereafter in October, 1978, respondent No. 1 husband of the petitioner obtained immigrant visa and reached Dallas, Texas, U.S.A. The respondent immediately after reaching there was able to get a job. It seems that soon after the marriage, both the petitioner and the respondent started having problems.
According to the petitioner, when she got pregnant, the respondent became very upset because he did not want a child. The petitioner prevailed upon him and refused for an abortion. It seems that there have been some differences between the husband and wife regarding payment of medical expenses which were incurred, because of the cesesarean operation of the petitioner and other expenses for hospitalisation with regard to the delivery of the first child.
5. In May, 1981, the petitioner and the respondent jointly purchased a family house in their joint names in Mesquit Texas, U.S.A. The decretal Court awarded this family house to the petitioner. In 1982, respondent No. 1’s sister Laxmi got married. The respondent sent a cheque of US $ 1000 from the joint account as a wedding gift to his sister. The petitioner was quite upset about the respondent sending this gift to his sister. According to her, she was not taken into confidence. In June, 1984, the respondent had sent a cheque of US $ 5000 from the joint account to his relations in India. The petitioner did not like this and it became one of the causes of their mutual differences. In the same year, both the petitioner and the respondent were granted US citizenship, According to the petitioner, the attitude of the respondent started changing towards the petitioner for the worst after he became US citizen.
According to the petitioner, the respondent refused to pick up the daughter from school because he said it was the duty of the petitioner to completely look after the welfare of the daughter. In 1985, according to the petitioner, the respondent persuaded the petitioner to give him US $ 4500 for the purchase of a company’s shares in his name. Those shares were not shown to the petitioner and that also became a cause of their differences. In 1986, the respondent’s father and brother arrived from India for a while. According to the respondent, the petitioner could not get along well with her father-in-law and brother-in-law and in fact she never liked their staying with them. That was another cause of dispute and differences between them. In May, 1987, the petitioner along with her daughter moved out of the family house. In the same year, according to the petitioner, the respondent requested her to permit him, to live with her in her apartment. In a move to reconciliation, she allowed the respondent to live in her apartment. After a few days, the petitioner and the respondent both shifted back to the family house because the petitioner again got pregnant and needed care and attention. According to the petitioner, at that critical juncture, the respondent filed divorce proceedings before the District Court which were stayed because of the petitioner’s pregnancy. On 28-12-1986, the petitioner gave birth to a baby boy Ravi. According to the petitioner, she received only a cheque of US $ 300 from the respondent for the child’s support.
6. In February, 1987, the petitioner returned all the jewellery to the respondent. On 1st May, 1987, the respondent moved out of the family house. The parents of the respondent also went along with him. According to the petitioner, the respondent left with the utensils and furniture and consequently, the petitioner was put to great difficulty.
7. On 10-2-1988, the District Court, Dallas County, Texas, U.S.A. held that the petitioner and the respondent are hereby divorced. The divorce decree is legal, valid and binding on the parties. It was further directed that the petitioner shall be the managing conservator of the two children, until they reach the age of 18 years and shall have all the rights, privileges, duties and powers of a parent, to the exclusion of the respondent-husband. The said decree further directed that the respondent-husband is appointed Possessory Conservator and will have limited access to the two children.
8. On 23-6-1990, the respondent wrote a letter that the two children will be living with him for four weeks and he will take them out for a vacation. In accordance with the visitation rights, the respondent took the children for four weeks during the summer vacation on 1-6-1990. The respondent was to bring back the children in the end of June, 1990. According to the petitioner, the respondent had secretly and without consent and/or knowledge of the petitioner abducted/kidnapped the children and took them to India. The children arrived at New Delhi on 14.6.1990. The petitioner had no knowledge about this and she discovered about it in response to a complaint which was filed by her, in the office of the Attorney General of Texas, U.S.A. requesting him to locate her children. As a result, the Grand Jury issued a Subpoena on the charge of interference in child custody and called upon the respondent to appear on 9-10-1990. The respondent failed to appear before the Grand Jury on that day.
9. According to the petitioner, she made frantic efforts through the American Embassy at New Delhi, to trace out the whereabouts of Sonika and Ravi. She received a reply from Ms. Renny T. Smith of the American Embassy at New Delhi that a Consular Assistant visited the house of the respondent Suraj Aggarwal at BV/57, Safdarjung Enclave, New Delhi on 19-3-1991, but could not meet the children as the lady in the house denied any knowledge of that two children. But the neighbours confirmed that two children were living at the address. The petitioner in such circtrmstances had approached the Court for issuance of a writ of habeas corpus directing the respondent, to produce her two minor children and to hand over their custody to her as the person entitled to their custody under the order of the competent foreign Court It is further submitted by the petitioner that these minor children are American citizens and their presence in India is the result of an illegal act of abduction or kidnapping by the respondent. The version of the respondent is quite different. The respondent submitted that the petitioner herself is responsible for the entire unfortunate chain of events. Her extremely arrogant and uncompromising attitude and behaviour has led to all these problems and the entire family life has been destroyed. According to the respondent, immediately after the marriage, the behaviour of the petitioner was so rude towards the family members of the respondent that he was compelled to send her back to the States only after two weeks of their marriage. The respondent has denied that he was sending money to his relations in India except that he had sent a cheque of US $ 1000 from the joint account as a marriage gift to his sister. Regarding the family house, the version of the respondent is that, it is wrong to say that initial amount of US $ 5000 was paid from the joint account. The initial deposit was from the joint account of the parties and was about US $ 4000. It is alleged by the respondent, that in May, 1986 before moving out of the family house, the petitioner closed the Fixed Deposit Joint account worth 20000 US $ which clearly showed her intention of renunciation of the marital bond between the parties. The respondent further mentioned that the entire expenses of delivery were borne by the respondent No. 1 and he had called his mother, the respondent No. 2 from India on 16-12-1986 to help the petitioner during the post delivery period. The respondent alleged that the entire jewellery of the petitioner including that, which was given from the side of respondent No. 1 also remained and is still in possession of the petitioner. The respondent further mentioned that on 1.5.1987, the respondent No. 1 along with his parents moved out of the family house because of the intolerant and unbearable behaviour of the petitioner. He had further mentioned that the petitioner was dismissed from the bank service on account of her rude behaviour with the boss.
10. According to the respondent, the marriage between the parties was solemnised according to Hindu rites, in India, and the parties were both Hindus at the time of marriage and also at the time of passing of the said decree of divorce. Therefore, the law applicable to the parties was the Hindu Law, particularly law relating to the custody of the children. According to the provisions of Hindu Law and The Guardians and Wards Act, the custody of a girl of above 7 years has to be with the father. The respondent has further mentioned that the paramount consideration in granting of the custody of minor children is, according to the law applicable to the parties, the welfare of the minor. In the instant case, the Decree of Dallas Court has totally ignored and by passed this material consideration and has granted custody of the minor children to the petitioner. The respondent has mentioned that both his children were brought to India by their grand parents in the summer vacations on 14-6-1990. The children stayed with the grand parents in India, for two months, with the result that they refused to go back to the States, even after the vacations were over. Consequently, the respondent had to come to India in order to persuade the children, to go back to States but he was unable to do so. The respondent had no alternative. In the interest of the children, he had to give up his lucrative job of 4000 US $ a month and also his other house which he had purchased in Dallas on 22-6-1990 There is no question of abduction or kidnapping of the children as alleged by the petitioner. According to the respondent, the petitioner was getting food stamps (free food tickets) to feed herself and her children. She cannot certainly be called a fit person to be given the custody of her two minor children. It is not in the interest of the children that they be fed and brought up on charity. The petitioner’s mother is about 80 years and has lost her eye-sight. She cannot look after the petitioner’s children. To the best of the respondent’s knowledge, the petitioner has even sold her car, as she was not able to maintain the same. The respondent alleged that the petitioner has intimated the school administration that she is not financially in a position to afford payment for the breakfast and lunch of the children and for that reason, the school administration provided free breakfast and lunch to the minor children of the parties by way of charity. This fact was told to respondent No. 1 by the daughter, Sonika herself. There are allegations and counter-allegations that they are poisoning the mind of the children against each other. The respondent has also mentioned that the petitioner is guilty of undue delay and latches in filing this petition after 10 months of the two minor children coming over to India. The respondent has laid great emphasis on the fact that he had filed a petition under Section 7/6 of the Hindu Minority and Guardianship Act, 1956 in the District Court, Delhi regarding the guardianship of both Sonika and Ravi. The petitioner has already been served with the summons of that petition, after she had successfully evaded service thereof for about 4-5 months. The Court is seized of the matter since December, 1990 and the entire controversy regarding guardianship and custody of the two minor children can validly be decided between the parties in that petition.
11. The respondent has mentioned that it is in the welfare and interest of the two minor children of the parties that their custody be allowed to remain with the respondent. This is particularly so. because the respondent is now well settled in India, being employed as Deputy General Manager with M/s. Perfect Circle Victor Limited getting, total emoluments of about Rs. 17,195 per month. Both the children are studying in a recognised public school which is close to their residence and their performance, in the school has been extremely good. Therefore, it would not be in the interest of the children to uproot them from the school.
12. This petition was heard for several days. Shri Ram Panjwani, learned Counsel appearing for the petitioner very ably argued the petition and vehemently stressed that the foreign judgment and order passed by an American Court must be respected by our Courts. There has to be a comity of Courts.
Shri Panjwani laid great stress on the fact that the custody of the minor children must be restored to the petitioner because according to the decree of the American Court, custody of the children was given to the petitioner which should not be disturbed. The respondent is a kidnapper and an abductor who has removed the children from the valid custody and brought them to India. He should not be allowed to get premium on his wrong and illegal act.
13. He also vehemently argued that the petitioner, the respondent, and their children are all American citizens. Neither the Hindu Law nor the law relating to the Hindu Minority and Guardianship Act has any application as far as the parties to this litigation are concerned. The suit instituted by the respondent is a total abuse of the process and has no application whatsoever as far as the parties of this case are concerned.
14. Shri Panjwani submitted that if a proper analysis of the entire conduct of the respondent is made, the irresistible conclusion would be, that the respondent is not a fit and suitable person who can be trusted and given custody of the children. The respondent has married again and his second marriage has also run into difficulties Divorce proceedings are pending in the Court of United States of America. Shri Panjwani argued that the children are likely to have greater advantages if they stay and study in the United States. The children would have greater facilities and material advantages over there. They will also have greater opportunities in their future carrier prospects. He has also urged that when the children are small, the Court should ignore their wishes, if they are contrary to their long term interests.
15. Shri Panjwani placed reliance on various English decisions and cases decided by the Supreme Court and other High Courts. It may not be necessary to deal all those cases in great detail.
16. According to Shri Panjwani, the children have been abducted/ kidnapped from the custody of the petitioner and were brought to India, therefore, the custody of the children be restored back to the-mother the petitioner. He placed reliance on Re. H. 1965 (3) All England Reports 906. In this case, the Court observed, that speedy international transport has recently given rise to a number of kidnapping cases, in which a parent, who has failed to obtain custody in another country, has brought the child to England in the hope of being successful here. Naturally the Court will do its utmost to discourage this practice. Consequently it may order the child to be sent back to the Country, where the original order was made, without considering the merits of the case at all, provided that it is satisfied that this can be done without fear of an immediate harm. This case was affirmed in a subsequent case (1966) 1 All England Reports, 886, C.A. Reliance was also placed on Re. G. (1969) 2 All England Reports, 1135. In this case, the child was ordered to be returned to Scotland. This procedure was followed on the general principle of comity and is called for if the foreign Court is the forum convenience. The learned Counsel for the petitioner also placed reliance on Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and Other, 1984 (3) SCC 698. In this case, the Court observed, “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 grandparents. The father is a man without a character who offered solicitation to the commission of his wife’s murder”.
17. The learned Counsel has also drawn our attention to a leading Judgment of the Supreme Court in Mrs. Elizabeth Dinshaw v. Arvand M. Dixshaw and Another, (1987) 1 S.C.C. 42. In this case, the Court has approved (1966) 1 All England Reports 886. The Court observed.
“Qutite independent of the above consideration whenever a question arises before a Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. In view of the facts that the petitioner-mother had genuine love and affection for the child and she could be safely trusted to look after him, educate him and attend in every possible way to his proper upbringing; that the child had not taken root in India and he has still accustomed and acclimatized to the conditions and environments obtaining in the place of his origin in the USA; that child’s presence in India was the result of an illegal act of abduction and the father who was guilty of the said act could not claim any advantage by stating that he had already put the child in some school in India and that the conduct of the father had not been such as to inspire confidence that he was a fit and suitable person to be entrusted with the custody and guardianship of the child for the present, it would be in the best interest of the minor child that he should go back with his mother to the United States and continue there as a ward of the concerned Court having jurisdiction.”
The Court has also placed reliance on (1965) 3 All England Reports, 912. The ratio which is brought out in this case is that in matters pertaining to the custody of minor children, a judgment delivered by a foreign Court should be given due weightage and must be respected, but paramount consideration ought to be the welfare and interest of the minor. The ratio of this case should be made applicable after proper analysis of the facts and circumstances of this case.
18. Shri R.K. Garg argued the matter on behalf of the respondent. He has taken preliminary objection, that since the respondent has filed a suit under Hindu Minority and Guardianship Act before the Guardianship and Ward Court, for the custody of the children where the question of their custody would be decided after recording of Court of competent jurisdiction. These proceedings are abuse of the process and the petition deserves to be dismissed on this ground alone. He further submitted that both the petitioner and the respondent are Hindus and are governed by their personal Hindu laws. Therefore, this Court must allow the suit pending before the competent Court to continue. The consequence of the order of this Court would indirectly be ousting the jurisdiction of the Trial Court, where the suit filed by the respondent is pending.
19. Shri Garg further submitted that the Courts have a paramount duty to order custody in the best interest of the upbringing and welfare of the children. He also submitted that the welfare of children must include the consideration of religious environment, cultural roots and impact of an alien hostile environment in the school. To support his contention, he relied upon a large number of accredited articles and empirical researches conducted by various organisations.
20. The learned Counsel cited these reports to demonstrate that, it would not be in the interest and welfare of the children to bring them up in the present cultural and social environmental of the United States. The children in their formative years are likely to imbibe the cultural environment and surroundings in which they are raised. He further submitted that the ethos of Indian family life and traditions is totally alien to the overwhelming. growth of juvenile pregnancies, AIDS cases and drug addiction cases. If the children are brought up in the American society in that event the present day cultural and social problems are bound to have an impact on the over all development of these children. He has also referred to the affidavits submitted by the father of the respondent before this Court in which he has stated that he and his wife, when they were in the U.S A., found it unbearable to see the lives of their son and grand children being destroyed. The family life in the environment prevailing in the society of U.S.A. was far from being conductive for the healthy development of his grand children. He has in fact persuaded his son to give up his lucrative job and has brought the grand children to India. In the affidavit, it is further mentioned that the father of the respondent treated his daughter-in-law as his own daughter and in spite of all that has happened, both he and his wife are willing to welcome the petitioner in their house as their daughter-in-law.
21. Shri Garg also relied upon certain passages from the English and Indian judgments dealing with almost similar circumstances and situations. It may not be necessary to burden this judgment with all those decisions. Reference is made only to a few decisions. Shri Garg also cited the leading English case, McKee v. McKee, 1951(1) All England Reports, 942. According to him, this is still the good law. It has been held in this Judgment:
“In proceedings relating to custody the welfare and happiness of the infant was the paramount consideration; the order of a foreign Court as to his custody must be given the weight which was due to it in the circumstances of the case, but such an order was only one of the facts which must be taken into consideration; and, therefore, it was the duty of the Canadian Court to form an independent judgment on the merits of the matter.”
Shri Garg referred to paras 524 and 525 of the Halsbury’s Laws of England, Fourth Edition, page 374. Para 524 is set out as under:
524. Inherent Jurisdiction. The English Court has an inherent jurisdiction, derived from the position of the Sovereign as parens patriae, to make orders concerning the custody and guardianship of minors who owe allegiance to the Crown and are entitled to its protection. This jurisdiction applies to all minors living in England, whatever their nationality or domicile, and whether or not they posses property within the jurisdiction. It is sufficient if the minor is physically present within the jurisdiction, even if for a brief period or in transit. If the minor is ordinarily resident in England the Court has jurisdiction, even if he is abroad at the time of the proceedings. If the minor is a British subject, the Court has jurisdiction wherever he is resident; but if the minor is resident outside England the jurisdiction will be exercised only in special circumstances.”
He referred to para 525 to strengthen his argument that the welfare of the minor is the first and paramount consideration in the matter of custody. He has also referred to this for the purpose that Courts will not decline the exercise of jurisdiction solely because the minor is an alien and only temporarily resident in England. Para 525 is set out as under:
“525. Exercise of Jurisdiction. Where in any proceedings the custody or upbringing of a minor is in question, the welfare of the minor is the first paramount consideration. The English Court must make its own assessment as to the welfare of the minor; relevant provisions of foreign law or orders made by foreign Courts are to be given due weight but are not decisive. The Court will not decline to exercise its jurisdiction solely because the minor is an alien and only temporarily resident in England.
Special considerations apply where there has been a kidnapping that is where a minor has been brought to England in defiance of the order of a foreign Court or against the wishes of one or both parents and with some element of force or deception or secrecy. In these cases the welfare of the child remains the first and paramount consideration, but in assessing it the Court will take into account the kidnapper’s conduct and its effect on the child. The Court may order the child’s return to the foreign country to minimise the harmful consequences of a kidnapping. In some cases it will do so by way of a summary order without necessarily examining all the issues in the case; this prevents a kidnapper from gaining an advantage through the passing of time.
Where the Scottish Court is seized of a question as to the custody of a minor, the English Court may order the removal of the child to Scotland on the ground that the Scottish Court is the more appropriate forum. It is uncertain whether this principle applies in respect of other countries, but in general the English Courts are reluctant to leave custody questions to foreign Courts.”
22. He has also referred to 1974(1) All England Law Reports, 913, Re. L. (Minors). This case was cited for the proposition that even in kidnapping cases the same principle would be applicable that the welfare of the child is first and paramount consideration in deciding the matter. It has been held in this case.
“In kidnapping cases the same principle was to be applied as in other cases involving children, i.e. that the welfare of the child was the first and paramount consideration. Where the Court embarked on a full-scale investigation of the facts of a kidnapping case, rather than making a summary order for the child’s return to the country from which he had been taken, the principle was to be applied in the same way as in other wardship cases. Although the conduct of a parent in kidnapping a child might well be a consideration to be taken into account, the paramount consideration was nonetheless the welfare of the child. Likewise in making a summary order to return a child to a foreign country the Court was not concerned to penalise any adult for his conduct; such an order was also ‘to be justified by the same principle i.e. that it was in the best interest of the child that the disruption to his life caused by bringing him to a strange environment should be terminated as soon as possible by returning him to the country from which he had been removed in the expectation that any dispute about his custody would be satisfactorily resolved in the Courts of that country.”
23. Shri Garg has also brought to our notice Smt. Mohini v. Virender Kumar, AIR 1977 SC 1359. This case was cited for the proposition that matters pertaining to Minority and Guardianship Act, the paramount consideration is always the welfare of the minor. Shri Garg has also placed reliance on Mrs. Elizabeth Dlnshaw v. Arvand M. Dinshaw and Another, 1987(1) SCC 42. The ratio of this case is that the judgments of the foreign Court have to be given due weightage and respect. Even then, in deciding the matters regarding custody of the children, the sole and predominant criterion ought to be the interest and welfare of the children.
We have carefully taken the ratio of this case and have made an endeavour to apply the ratio on the facts of the present case.
24. Careful analysis of these judgments particularly the latest in point of time, i.e., 1987 (3) SCC, the ratio derived, is that, while considering these matters the paramount consideration ought to be the welfare and interest of the children.
25. We have examined and dealt with this case predominantly from the point of view of the interest, welfare and happiness of these two minor children. After hearing Counsel for the parties at length, we have also interviewed and talked to the children on three different occasions, primarily to ascertain their wishes. We have talked to children in the presence of the parties and separately also. On the request of the petitioner, we talked to the children before and after providing her adequate opportunity of being with the children. This was done, so that we are able to ascertain the children’s wishes objectively, without much influence or tutoring by the respondent and his relatives. The idea of taking to the children, after three or four meetings with their mother, was to balance the situation.
26. The attitude of the children towards their mother remained totally unchanged, even after her being with them for sometime (after she arrived from the United States). Unfortunately, the children particularly daughter Sonika has a deep sence of hatred towards her mother. Sonika who is now 13 years of age and is extremely intelligent and mature for her years, has very unpleasant memories of her early childhood, when she was in the United States. She has stories full of horror and she has primarily blamed the petitioner for all this unfortunate situation. At no cost are both the children willing to go back to the USA and live with their mother. In spite of our narrating some advantages of staying in the U.S.A. where better quality of education would be given and they will have better opportunities for their future career, the children are just not prepared to go back to the USA and stay with their mother. We have also explained to the daughter Sonika that the petitioner would be able to take better care of them and would be in a position to spend more time with them, but she narrated number of incidents to convince us that it would not be in their interest to stay in the U.S.A. It would not be appropriate or necessary to recapitulate the details of the incidents narrated by her.
27. The children seem to be quite happy with the father and grand parents in Delhi. According to them, they are getting love, affection, care and attention in abundance from them, which they can never get in the United States. Sonika has firmly expressed her views, that sending her back to the USA would be disastrous for her and her brother. Ravi is 5 years old and is a boy of reasonable intelligence. He also does not want to go back with his mother to the United States. We are not particularly attaching much importance to the preference of Ravi because he is still a very small child. Ravi seems to be extremely attached to his sister and he does not want to stay without her. Sonika also seems to be a very affectionate and caring sister and is discharging the obligation of an elder sister in the circumstances in a remarkable manner. It seems the children have been deprived of attention care, love and affection which they were legitimately entitled to. It appears that both the father and mother had hardly any time to look after these children. Their mutual differences have made the situation from bad to worse. The children complained of a terrible sense of loneliness, while they were there. According to Sonika, she and her brother are getting far greater love and affection, here in India, as compared to what they were getting from their mother in the USA. Sonika also complains that even the close relations of her mother are also quiet indifferent towards them. She also mentions that her maternal grand father, who is also living here, never bothered to meet or call her on telephone even once. Similarly their maternal uncle who lives in Ghaziabad, also never bothered to look them up or enquire about them.
28. Sonika is also quite happy with her school and classmates. We have also perused her examination results and her performance reports. Both the children are admitted to recognised public schools of Delhi and their performance reports clearly indicate that they are doing quite well.
Sonika is aware that America is far more affluent in comparison to India and she can get better opportunities for a future career, but she does not seem to be highly impressed by the present modern culture of the United States. In spite of the fact that America is a land of plenty and full of opportunities, even then she prefers to study and live in India.
29. It may also be pertinent to point out that even when the children met their mother after a very long time, they were not been on meeting her at all. As a matter of fact, Sonika was not even prepared to meet or talk to her in our absence. They are extremely scared of their mother. In spite of our persuasion, she hardly showed any interest in even talking to her. Ravi’s behaviour was also indifferent towards his mother. We had called the children on three different occasions to ascertain their wishes and to know if, deliberations with them could help us in reaching the conclusion regarding their inter-rests and welfare.
30. On our request, the petitioner came here and immediately, thereafter we talked to the children in the presence of the petitioner and the Counsel appearing for the parties in the chamber. The Counsel appearing for the petitioner pointed out that the children seem to be under the influence of the father. Therefore, we should ascertain the wishes of the children, after providing a proper opportunity to the petitioner to sit and talk to them. Mr. Srivastava, Counsel for the respondent very fairly offered that the petitioner is welcome to come to the house of the respondent for 4 days, if she likes and that she will be provided with all the facilities to mix and talk to the children. He further submitted that in case the petitioner does not want to stay there in the evening, she can come and talk to the children between 4 P.M. and 6 P.M., because they return from the school in the afternoon. On the basis of the submission on 11.2.92, we directed that the petitioner shall go to the house of the respondent at 4 P.M. and even stay there for 4 days if she so desires. If she does not want to stay there, we directed the respondent to provide her full opportunity to talk to the children between 4 P.M. and 6 P.M. In pursuance of our directions, the petitioner had gone and stayed in the house of the respondent. We talked to the children after the petitioner had considerable time and opportunity of being with them for a number of days. We do not find much difference in the attitude of the children, even after the petitioner was given an opportunity to stay and mix up with them. The children in our subsequent meeting also categorically expressed their desire, that at no cost would they want to go back to the States with their mother. They are quite happy in India with their father and their grand parents. They were also quite happy with their school.
31. We are quite conscious of the fact that the conduct of the respondent has not been straight forward and he is also gulity of indiscretion on various occasions. Ordinarily, after hearing Counsel for the parties and particularly in view of the fact of the decision of the US Court, we would have directed the custody of the children to the mother. The entire situation has taken a somersault after we had long deliberations with the children on three different occasions. The children are extremely firm, adamant and at no cost are they prepared to go back to the United States with their mother. The children have been here for over a year, it has been indeed a very difficult decision for us to come to a definite conclusion for quite sometime. Now of course we are fully convinced that the happiness, welfare and interest of the children lies in their staying with the father and grand parents. The grand parents are in their early sixties and have tremendous natural love and affection for the grand children. The way they have been bringing up these children for last over a year leaves no room for any doubt that will continue to look after these children properly in future also. The children have not taken roots in the U.S.A. They are accustomed and acclimatized to the conditions and environment of this country.
32 There have been several lapses on behalf of the respondent but in our opinion he was a victim of circumstances. One thing he never lacked and that is his love and affection for his children. Money has not been more important to him than the interest and welfare of his children. Otherwise, he would have never left a cozy and lucrative job in the United States and decided to settle down in India. If we balance all the circumstances in this case we are firmly of the opinion that the welfare, interest and happiness of the children would lie in their staying with the respondent. The respondents parents who also want to raise their grand children in Indian traditions, cultural and social ethos would be another factor tilting in favour of giving custody of the children to the respondent. To uproot the children, totally against their wishes may have disastrous consequences.
33 We are quite conscious of the fact that ordinarily Courts have granted custody to the mother in cases of this nature, because Courts felt that the welfare and interest of the children could be better looked after by her. The present case seems to be an exception to the general rule. After long interviews deliberations and talks with the children, we do not have even the slightest doubt that the children’s interest would be better looked after by the father and their grand parents in India.
34. However, we would like to make it clear that the petitioner must be given all freedom and opportunity of spending adequate time with the children as and when she is in India. The respondent has allowed the petitioner to come and stay with him, during the course of the hearing of this case. We to hope and trust that in future also as and when the petitioner so wishes, she would be permitted to come and spend time with the children. The mother would be free to call her children telephonically as and when she feels like talking to them. If the petitioner so desires, she may also provide the ‘collect call facilities’ to the children so that they can also speak to her.
35 In conclusion, the custody of the children shall remain with the father until the children attain the age of majority.
36. We would place on record the very able assistance provided by the Counsel for the parties in resolving primarily a human problem. In the facts and circumstances of this case, there shall be no order as to costs. The petition is disposed of with the directions as indicated above.
Custody granted to respondent.