2000 (2) TMI 885 - SC - Indian Laws

Summary

Issues Involved:
1. Legality of custody of minor children.
2. Validity of using Habeas Corpus for child custody.
3. Impact of foreign court orders on Indian jurisdiction.
4. Consideration of the welfare of minor children.

Detailed Analysis:

1. Legality of Custody of Minor Children:
The appeal was filed against the judgment of the High Court of Delhi, which directed Sarita Sharma to restore the custody of her two minor children to Sushil Sharma based on the orders of an American court. Sushil Sharma had initiated divorce proceedings in the District Court of Tarrant County, Texas, USA, which passed interim orders regarding the custody of the children. Sarita Sharma, however, took the children to India without the court's permission. The High Court of Delhi ruled that Sarita's act of taking the children to India without informing or obtaining permission from the American court constituted illegal custody.

2. Validity of Using Habeas Corpus for Child Custody:
The appellant's counsel argued that a Habeas Corpus petition is not appropriate for securing custody of minor children who are with their mother. It was contended that the primary consideration in a Habeas Corpus petition should be whether the person is in illegal custody or detained against their will. The counsel also argued that Sarita was the natural lawful guardian and managing conservator of the children when she brought them to India.

3. Impact of Foreign Court Orders on Indian Jurisdiction:
The High Court of Delhi had considered the interim orders and final decree of the American court, which granted sole custody of the children to Sushil Sharma. The High Court rejected Sarita's contention that the American court's orders were obtained by fraud and stated that she should approach the American court for revocation of those orders. The Supreme Court, however, noted that the decree of the American court, while relevant, cannot override the paramount consideration of the welfare of the minor children.

4. Consideration of the Welfare of Minor Children:
The Supreme Court emphasized that the welfare of the children is of paramount importance. It was observed that Sushil Sharma was staying in the USA with his 80-year-old mother and had a habit of excessive alcohol consumption. The court noted that although the children might receive better education in the USA, it was doubtful if Sushil could take proper care of the young children, especially the female child aged about 5 years. The court highlighted that it is generally preferable for a female child to stay with the mother and that separating the siblings was not desirable. The court found that Sarita Sharma was taking proper care of the children in India, where they were studying in good schools and expressed a desire to stay with their mother.

Conclusion:
The Supreme Court allowed the appeal, set aside the judgment of the High Court, and dismissed the writ petition filed by Sushil Sharma. The court directed that the issue of the children's custody requires a full and thorough inquiry, which should be conducted in appropriate proceedings. The court also suggested the possibility of Sarita Sharma returning to the USA with the children, depending on joint efforts to get the arrest warrant cancelled and possibly modifying the custody and visitation orders in the USA.