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TMI Blog2000 (2) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... open to Sushil Sharma to take the children to U.S.A. without any hindrance. Sarita has, therefore, filed this appeal. 2. Sushil initiated proceedings for dissolution of his marriage in the District Court of Tarrant County, Taxes, U.S.A. in 1995. In the said proceedings interim orders were passed from time to time with respect to the care and custody of the children and visitation rights of Sushil and Srita. Even while the divorce proceedings were pending Sushil and Sarita lived together from November, 1996 to March, 1997. They again separated. This time Sarita had taken the children along with her. It was stated in the writ petition that the Associate Judge, raking note of the fact that Sarita had gone away with the children, passed an order for putting the children in the care of Sushil and Sarita was only given visitation rights. On 7.5.1997 Sarita had picked up the children from Sushil's residence in exercise of her visitation rights. She was to leave the children in the school the next day morning. Sushil got the information from the school that the children were not brought back to the school. On making inquiries he came to know that Sarita had vacated her apartment and g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or children staying with the mother. He further submitted that when she came to India with the children she was the natural lawful guardian of the children and also managing conservator of the children. With respect to the decree of divorce and order for custody of the children, he submitted that the said decree and order were obtained by the respondent by suppressing material facts from the Court and the said decree and order, even otherwise, should not be taken as binding on the Courts in India, as they are not consistent with the law applicable to the parties. He lastly submitted that even if the said decree and order are treated as valid for the present the High Court should not have allowed the writ petition without considering the welfare of the children. 4. The record of the divorce proceeding which has come on the record of this case discloses that prior to their separation Sushil and Sarita with their two children and Sushil's mother were staying together in U.S.A. The record further discloses that there were serious differences between the two. Sushil was alcoholic and had used violence against Sarita. Sarita's conduct was also not very satisfactory. Before she ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. State of Washington 90 L Ed 90 : 326 US 310 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 inconvenience 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. In that case the husband had removed the boy from England and brought him to India and the wife after obtaining an order of the English Court, whereby the boy became the Ward of the Court, came to India and filed a petition in the High Court Punjab and Haryana seeking a writ of Habeas Corpus. The High Court rejected 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing whether to order the return of a child who has been abducted from his or her country of habitual residence - which was not a party to the Hague Convention, 1980, - the Courts' overriding consideration must be the child's welfare. There is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the child's return unless a grave risk of harm was established. See also A (A minor) (Abduction: Non-Convention Country) (Re., The times 3-7-97 by Ward, L.J. (CA) quoted in Current Law, August 1997, p. 13). This answers the contention relating to removal of the child from U.S.A. 6. Therefore, it will not be proper to be guided entirely by the fact that the appellant Sarita had removed the children from U.S.A. despite the order of the Court of that country. So also, in view of the facts and circumstances of the case, the decree passed by the American Court though a relevant factor, cannot override the consideration of welfare of the minor children. We have already stated earlier that in U.S.A. respondent Sushil is staying along with his mother aged about 80 years. There is no one else in the family. The respondent appears to be in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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