1986 (11) TMI 397 - SC - Indian Laws

Summary

Issues Involved:
1. Custody of the minor child.
2. Violation of the foreign court's custody order.
3. Best interests and welfare of the minor child.
4. Legal implications of unauthorized removal of the child from the United States to India.
5. Appropriate legal remedies and directions.

Detailed Analysis:

1. Custody of the Minor Child:
The Supreme Court of India allowed the writ petition, directing that the minor boy, Dustan, be restored to the custody of the petitioner, his mother, with liberty to take him to the United States. The Court emphasized that the child would be a ward of the concerned Court in Michigan, and it would be open to the father to move that Court for a review of the custody if he so advised.

2. Violation of the Foreign Court's Custody Order:
The petitioner, Mrs. Elizabeth Dinshaw, a U.S. citizen, was granted custody of the minor child by the Circuit Court for the County of Saginaw, Michigan, following her divorce from the first respondent. The first respondent, Mr. Arvand M. Dinshaw, violated this order by taking the child to India without informing the Court or the petitioner, thereby committing a gross violation and contempt of the order of the Circuit Court in Michigan.

3. Best Interests and Welfare of the Minor Child:
The Supreme Court of India stressed that the matter of custody should be decided based on the best interests and welfare of the minor child, not on the legal rights of the parties. The Court found Dustan too young and immature to form an independent opinion about which parent he should stay with. The Court concluded that it would be in the best interests of Dustan to return to the United States and continue his education under the custody and guardianship of his mother, who had been entrusted with his custody by a competent Court in the U.S.

4. Legal Implications of Unauthorized Removal:
The Court referred to the principles laid down in the case of Re H. (infants) (1966) 1 All ER 886, emphasizing that courts in all countries should ensure that a parent who wrongfully removes a child does not gain an advantage by such wrongdoing. The Court agreed with the principle that unauthorized removal of children should not be encouraged and that the orders of the proper foreign Court should be respected unless compliance would inflict serious harm on the child.

5. Appropriate Legal Remedies and Directions:
The Court directed that the minor child be returned to the petitioner and allowed her to take him back to the United States. The Court also noted that the first respondent had been found in contempt by the Circuit Court, Saginaw, Michigan, for violating its order. The first respondent was advised to tender an unconditional apology to the U.S. Court and seek modification of the order terminating his visitation rights. The Court expressed hope that the petitioner would cooperate with the father in enabling him to have restricted visitation rights in America with necessary safeguards and assist in withdrawing the outstanding warrants of arrest against him.

Conclusion:
The Supreme Court of India disposed of the writ petition with directions to restore the minor child to the petitioner and allowed her to take him to the United States, emphasizing the best interests and welfare of the child and the importance of respecting foreign court orders.