9911796707
TMI Blog1986 (11) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... to the order passed by this Court. We now proceed to state in this judgment our reasons in support of the order. 2. The Petitioner, Mrs. Elizabeth Dinshaw is a citizen of the United States of America residing in the State of Michigan. She is employed as a caseworker for the State of Michigan in Genesee County Department of Social Services, Flint Michigan. The first Respondent, Mr. Arvand M. Dinshaw, who is an Indian citizen was a student at Northern Michigan University in 1971. During that period the Petitioner was also studying there. What started as a friendship between them on the campus later developed into love and the Petitioner was married to the first Respondent in a civil marriage before a legal magistrate in Negaunee, Michigan on February 26, 1972. The first Respondent thereafter settled down in the United States more or less on a permanent basis having secured employment as an Accountant for the Controller's Office in Genesee County and having obtained a permanent immigration Visa. A male child, Dustan, was born to the couple on August 30, 1978 in Rochester, Michigan, United States of America where they were having their marital home. 3. Unfortunately differences aro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor had he given the slightest indication to the Petitioner about his intention to leave the United States of America permanently for India. It may be stated that immediately before leaving for India, the first Respondent had sold away the immovable property consisting of a house and its premises owned by him in Seymour, Lindan, Michigan, where he had been residing and it was only from the Airport that he posted a letter tendering his resignation from his job as Accountant in the County. In this context it is significant to recall that the decree of the Circuit Court contained the following directions:-- It is further ordered and adjudged that the Defendant shall notify the Office of the Friend of the Court promptly concerning any changes in his address. The Court further finds that the Defendant is presently residing at 14155 Seymour, Lindan, Michigan. 5. It was only late in the day on Monday, January 13, 1986 that the Petitioner came to know that the minor child, Dustan had not been returned to the day care centre by the first Respondent. She immediately moved the Michigan Circuit Court complaining against the violation by the first Respondent of the terms of its decree. A warra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng wrong in bringing Dustan with him from the United States and that now the minor child is well settled here in India and it will be in the interest of the child that he should be allowed to reside with him in India as per the child's desire. 7. The conduct of the first Respondent in taking the child from the custody of the person to whom it had been entrusted by the Court was undoubtedly most apprehensible. The explanation sought to be given by him namely, his father's illness, is far from convincing and does not in any way justify such gross violation and contempt of the order of the Circuit Court in Michigan. 8. Whenever a question arises before Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. We have twice interviewed Dustan in our Chambers and talked with him. We found him to be too tender in age and totally immature to be able to form any independent opinion of his own as to which parent he should stay with. The child is an American citizen. Excepting for the last few months that ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther. She ignored an order made in June, 1965, by the Supreme Court of New York State to return the boys there. On a motion on notice given by the father in the Chancery Division of the Court in England, the trial Judge Cross, J. directed that since the children were American children and the American Court was the proper Court to decide the issue of custody, and as it was the duty of courts in all countries to see that a parent doing wrong by removing children out of their country did not gain any advantage by his or her wrongdoing, the Court without going into the merits of the question as to where and with whom the children should live, would order that the children should go back to America. In the appeal filed against the said judgment in the Court of Appeal, Willmer L.J. while dismissing the appeal extracted with approval the following passage from the judgment of Cross, J.:-- The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing. The Courts in all countries ought, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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