G H JASMEET KAUR versus STATE (NCT OF DELHI) & ANR. on 12 December 2019

1144

SUPREME COURT REPORTS

[2019] 18 S.C.R.

A

JASMEET KAUR

v.

STATE (NCT OF DELHI) & ANR.

(Special Leave Petition (Crl.) No. 4858-4859 of 2018)

B

DECEMBER 12, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Guardians and Wards Act, 1890 – s.9 – Hindu Minority andGuardianship Act, 1956 – Custody of children – Respondent-husband, a U.S. Citizen married the petitioner-wife in U.S. – AfterCthe birth of their daughter, who acquired U.S. citizenship by birth,petitioner-wife also obtained U.S. citizenship – After some time, boththe parties visited India – Thereafter, petitioner-wife, who waspregnant at that time refused to return to the U.S. – Respondent-husband instituted custody proceedings before the U.S. County CourtD– The U.S. Country Court passed an ex-parte interim order andgranted temporary custody of both children to the respondent-husband with supervised visitation rights to the petitioner-wife –The petitioner-wife approached the Family Court in India and soughtsole & permanent custody of both the children – The Family Courtin India held that the paramount interest of the children would lie inEshared parenting by the parties in the U.S. and the petitioner-wifewas not entitled to the sole custody of the children – Aggrieved, thepetitioner-wife filed appeal before the High Court in India, whichwas dismissed – Thereafter, respondent-husband filed writ of HabeasCorpus before the High Court in India to direct the petitioner-wifeFto produce the minor children – The High Court directed thepetitioner-wife to return to the U.S. along with the two minor children– High Court further directed the respondent-husband to move theSuperior Court in U.S. to recall earlier orders of the U.S. CountyCourt which directed temporary physical and legal custody of theminor children to him and directed children to remain in custody ofGpetitioner-wife when she lands in U.S. – In compliance, respondent-husband submitted affidavit to the said effect and also obtainedorder from the Superior Court as per direction of the High Court –The Superior Court in U.S. granted custody of the children to thepetitioner-wife until further custody orders were determined by theHCourt after hearing both the parties – Pursuant thereto, High Court in India directed the petitioner-wife to return to the U.S. along withboth the children – Petitioner-wife challenged the orders of the HighCourt before the Supreme Court of India – Held: The followingdirections were issued: The petitioner-wife to return to U.S. alongwith two minor children – If petitioner-wife chooses not to return tothe matrimonial home, then respondent-husband to provide hersuitable accommodation – The petitioner-wife to provideunsupervised access to the respondent-husband every weekend –If petitioner-wife chooses not to jointly practice with respondent-husband at their clinic, then parties to take steps to divide the assetsequally – The respondent-husband to get children admitted to areputed school in the vicinity – The respondent-husband to furtherprovide U.S. $8000 per month to the petitioner-wife to meet all herexpenses – Further, after the division of assets, both the parties toshare equally the expenses towards the education and upbringingof the children.

AB

C

Disposing of the Special Leave Petitions, the Court D

HELD: The Court disposed of both the Special LeavePetitions and passed the following directions:-

i.The parties will jointly apply to the U.S. Embassy forrenewal of the U.S. Passport of their daughter and forEissuance of an American passport for their son.

ii.The Petitioner – wife along with the two minorchildren will return to the U.S. after the issuance ofthe Passports of the minor children.

If the Petitioner fails to comply with theaforesaid direction, the children will be handed overto the Respondent – husband who will take them backto the U.S.

F

iii.The Respondent – husband offered that uponreturning to the U.S., the Petitioner – wife may returnto the matrimonial home.

G

If the Petitioner – wife, however, chooses tolive independently, the Respondent – husband willprovide suitable accommodation to the Petitioner –wife with all basic amenities.

H

A

In the alternative, the Petitioner – wife mayidentify a suitable accommodation, in the same vicinityso that the Respondent – husband has access to thechildren.

iv.The Petitioner – wife undertakes to provide visitationBand unsupervised access to the Respondent – husbandevery weekend, which arrangement may be modifiedby a Court of competent jurisdiction in the U.S.

v.The Respondent – husband offered that uponreturning to the U.S., the Petitioner – wife maycontinue to practice dentistry at their joint clinic.

C

If the Petitioner – wife is not interested tojointly practice with the Respondent – husband at theirclinic, the parties may take steps to divide the assetsequally. The division of assets shall be completedDwithin a period of 4 months.

vi.The Respondent – husband will take steps to get thechildren admitted to a reputed school in the vicinity.

vii.The Respondent – husband has agreed to provide anamount of $8000 to the Petitioner – wife to meet allher expenses.

E

The amount to be deposited in the EscrowAccount by the Respondent – husband as a securityto ensure compliance of the payment terms.

viii.After the assets are divided, both parties will shareFequally the expenses towards the education andupbringing of the children.

ix.The Petitioner – wife has instituted Divorceproceedings against the Respondent – husband beforethe Family Court in India. The Petitioner – wife hasagreed to withdraw the said divorce proceedings.[Para 7][1154-H; 1155-A-H; 1156-A-H; 1157-A]

G

CRIMINAL/CIVIL APPELLATE JURISDICTION: SpecialLeave Petition (Criminal) Nos. 4858-4859 of 2018.

From the Judgment and Order dated 06.03.2018 and 21.05.2018of the High Court of Delhi at New Delhi in W.P. (Crl.) No. 725 of 2017.

With

Special Leave Petition (Civil) No. 20022 of 2019.

Ms. Malavika Rajkotia, Ravi Avasthi, Ms. Rytim Vohra,Ms. Devina Malaviya, Lakshmi Raman Singh, Anil Malhotra, RanjitMalhotra, Viresh B. Saharya, Rajat Bhalla, Akshat Agarwal, Bharat Singh,Ms. Diksha Rai, Dr. D.V. Rao, B. V. Balaram Das, Advs. for theappearing parties.

The Judgment of the Court was delivered by INDU MALHOTRA, J.

1. The present Special Leave Petitions arise out of matrimonialdisputes between the parties.SLP (Crl.) No. 4858-4859/2018 has beenfiled by the Petitioner – wife to challenge the Orders dated 06.03.2018and 21.05.2018 passed by the High Court in a Habeas Corpus Petition(Crl) No. 725 of 2017 filed by the Respondent – husband, seeking issuanceof a writ of habeas corpus for production of the children, who havebeen illegally abducted by the Petitioner – wife from his custody in theUSA.

SLP (C.) No. 20022/2019 arises out of a Guardianship Petitionfiled u/s. 9 of the Guardians and Wards Act, 1890 (“GWA”) by thePetitioner – wife praying for permanent and sole custody of the minordaughter – Ishnoor now aged about 7 years, and minor son – Paramviraged about 2 years.

Since both SLPs arise out of common facts, they are beingdisposed of by this common judgment.

2. The background facts in which the present SLPs have beenfiled are briefly set out herein below:

2.1The Respondent – husband migrated to the U.S. with hisparents in 1994, when he was 14 years old, and has beenpermanently residing there since the past over 25 years,and has acquired U.S. citizenship. The Respondent –husband has been practicing as a Dentist in the U.S.

A

B

C

DE

F

G

H

A2.2The Petitioner – wife moved to the U.S. in 1998, when shewas 17 years old to pursue a degree in Computer Sciencefrom Hunter College in New York. The Petitioner met theRespondent sometime in 2000, while she was a student.After meeting the Respondent, she decided to do a coursein Dentistry, and subsequently qualified as a Dentist.B

2.3On 22.08.2006, the parties got married in New York andobtained a certificate of registration of marriage from theMarriage License Bureau, New York.

On 23.12.2007, the parties came to India, andCsolemnized their marriage under Sikh rites in the presenceof their families.

2.4The parties have lived in the U.S. throughout the subsistenceof their marriage, and jointly started running a dental clinicviz. ‘South End Dental Clinic’at Norwalk, Connecticut.DThe daughter – Ishnoor was born out of the wedlockon 27.08.2012 and acquired U.S. citizenship by birth.

2.5After the birth of their daughter, the Petitioner– wife appliedfor citizenship, and obtained U.S. citizenship in April, 2013.

2.6On 26.01.2016, the couple along with their daughter –EIshnoor and the parents of the Respondent came to NewDelhi, to attend the wedding of her brother, on a returnticket. The Petitioner – wife was pregnant at that time.The parties were scheduled to return to the U.S. on06.03.2016. The Petitioner – wife however refused to returnto the U.S.along with Ishnoor.F

While she was in India, she delivered the second child viz. Paramviron 15.09.2016 at New Delhi. Since both parties were U.S. citizens, theminor son – Paramvir would be an American citizen by birth.

3. Proceedings in the U.S.

G3.1The husband instituted custody proceedings before the USCounty Court at Stamford, Connecticut seeking custody ofthe children.

3.2The Superior Court of the State of Connecticut at Stamford/Norwalk passed an ex-parte interim Order datedH17.11.2016 whereby temporary custody of both children was granted to the Respondent – husband, with supervisedvisitation rights for the Petitioner – wife.

3.3On 25.01.2017, the Superior Court passed a Final Orderdirecting the Petitioner – wife to return to the U.S with theminor children, and granted sole, legal and physical custodyof both children to the husband, with supervised visitationrights to the Petitioner – wife.

The Superior Court ordered that when the wifeappears before the Court, she would be given an opportunityto be heard, and to lead evidence with respect to the issueof custody of the children, which would be dealt with fairly,after evidence was led by both parties.

4. Guardianship Proceedings in India

4.1The Petitioner – wife filed a Guardianship Petition bearingG.P. No. 64/2016 u/s. 7,9, 11 and 25 of the Guardians andWards Act, 1890 read with S. 6 (a) of the Hindu Minorityand Guardianship Act, 1956 before the Family Court, TisHazari, New Delhi seeking sole and permanent custody ofboth the children.

4.2The Respondent – husband filed an Application under OrderVII, Rule 11CPC seeking rejection of the plaint.

4.3The Family Court vide Order dated 26.12.2016 allowedthe Application, and dismissed the Guardianship Petition.The Court held thatthe parties and their daughter – Ishnoorwere “ordinarily residing” in the U.S. at the time of filingthe Guardianship Petition, and their son – Paramvir was aU.S. citizen by birth, consequently, they would be governedby the laws of the U.S.

4.4The Petitioner – wife filed MAT. Appeal (FC) No. 3 of2017 u/s. 19 of the Family Courts Act, 1984 before theDelhi High Court to challenge the Order dated 26.12.2016passed by the Family Court.

The Delhi High Court vide Order dated 19.09.2017dismissed the Appeal, and held that the issue of custody ofthe children should be decided by the court having closestconnection with the children, which is the Courts in the U.S.

A

B

C

D

E

F

G

H

A4.5Aggrieved, the Petitioner -wife challenged filed Civil AppealNo. 2291 of 2018 before this Court to challenge Judgmentdated 19.09.2017.

4.6This Court vide Order dated 20.02.2018 allowed the CivilAppeal filed by the Petitioner – wife, and set aside the OrderBpassed under Order VII Rule 11. The case was remitted tothe Family Court to be decided on merits.

4.7The Family Court vide Order dated 20.08.2018 decidedthat the Indian Courts would have no jurisdiction to entertainthe Petition u/S. 9 of the Guardians and Wards Act.

C

CThe Family Court held that the Petitioner – wife wasan American citizen. She had an American Passport, withan OCI Card. The minor girl – Ishnoor was also holding anAmerican passport. On account of the Petitioner – wifehaving prolonged her stay in India, the passport of thedaughter expired in October 2017, which has not beenDrenewed ever since. Insofar as the son is concerned, thePetitioner - wife had not obtained the U.S. Passport eventhough he was an American citizen by birth. Both childrenhad no valid documents for their stay in India. Since thechildren were residing in India in breach of immigration laws,Ethey would not fall within the ambit of ‘ordinarily residing’in India as provided by Section 9 of the Guardians and Wards Act.

On the issue of custody, the Family Court held thatthe paramount interest of the children would lie in sharedFparenting by the parties in the U.S., and that the Petitioner– wife was not entitled to the sole custody of the children.

With respect to jurisdiction, the Family Court heldthat the Indian Courts would lack jurisdiction to entertainthe Guardianship Petition.

GAggrieved, the Petitioner – wife filed MAT. Appeal (FC) No. 244of 2018 before the Delhi High Court to assail the Order dated 20.08.2018passed by the Family Court. The High Court by the impugned Judgmentand Order dated 01.07.2019 dismissed the appeal.

The High Court held that the Hindu Minority and GuardianshipHAct, 1956 does not override the Guardians and Wards Act, 1890 which is supplemental to the latter. s. 9 of the Guardians and Wards Act, 1890provides that the Court where the child ‘ordinarily resides’ would havejurisdiction to decide the issues of guardianship and custody.

The High Court noted that the Petitioner – wifehad purchasedproperties in the U.S., and had applied for U.S. citizenship in 2012, whichwas granted to her in 2013, and was not surrendered to date. Thesefacts reflect that the Petitioner – wife did not intend to make India herpermanent home.

The conduct of the parties revealed that they had abandoned theirdomicile of origin in India, and therefore, could not be said to be ‘ordinarilyresiding’ in India. As a consequence, the courts in Delhi would have nojurisdiction to entertain the Petition u/S. 9 of the Guardians and WardsAct, 1890.

The Court held that it would not be difficult for the minor girl –Ishnoor to get accustomed to the life and environment of America, sinceshe was 7 years old, and had spent the initial 4 years of her life in theU.S. Once she starts going to school in the U.S., she would acclimatizeherself to that country. The minor son – Paramvir being a little over twoyears old would be in a position to adapt to the lifestyle and customs ofthe US.

The High Court held that this was not a case where the childrenhad grown up and rooted themselves in India. The welfare of the childrenwould lie in joint parenting by both parents in the U.S., which was notpossible if the wife retained the sole custody of the children in India. Thewife could therefore not be granted permanent and sole custody of thechildren.

The Judgment and Order dated 01.07.2019 passed by the HighCourt dismissing the MAT. Appeal (FC) No. 244 of 2018 has beenchallenged by the Petitioner – wife before this Court by way of SLP(C.) No. 20022/2019.

5. Habeas Corpus Proceedings in India

5.1After dismissal of the first round of litigation pertaining tothe guardianship of the children, the Respondent – husbandfiled Writ Petition (Crl.) No. 725 of 2017 before the DelhiHigh Court for issuance of a Writ of Habeas Corpus todirect the Petitioner-wife to produce the minor children i.e.

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

Ishnoor and Paramvir before the Court, along with theirU.S. Passports. The Respondent – husband further prayedthat the High Court permit him to take the minor childrenwith him to the United States.

The High Court videJudgment and Order dated06.03.2018 allowed the Habeas Corpus Petition anddirected the Petitioner – wife to return to the U.S.alongwith the two minor children within three weeks.

It was evident from the conduct of the parties thatthey had abandoned their domicile of origin i.e. India, hadset up their matrimonial home in the U.S. and raised theirdaughter in that environment. When the Petitioner – wifedecided not to return to the U.S. in January, 2016 she actedin her self-interest, and not in the best interest of herchildren.

The High Court held that the children have the rightto be brought up by both parents as a family in the U.S. It isin the best interest of the children that the Petitioner – wifereturns to the U.S.

The High Court issued directions to the Respondent– husband to ensure that once the Petitioner – wife returnsto the U.S., she is not faced with any adversity or hostilityby the Respondent – husband, or the American legal system.

The High Court further directed the Respondent –husband to move the Superior Court, Judicial DistrictStamford, Norwalk for re-call of Orders dated 17.11.2016and 25.01.2017 wherein the Petitioner – wife was directedto grant temporary physical and legal custody of the minorchildren to the Respondent – husband. Furthermore, whenthe Petitioner – wife land sin the U.S. with the two minorchildren, they shall not be removed from her custody.

The two minor children shall continue to remain inthe custody of the Petitioner – wife even after she returnsto the U.S., till the competent court in the U.S. passes freshorders on the aspect of temporary/permanent custody ofthe children, after granting adequate opportunity of hearingto both parties. The Respondent – husband would not make 5.2

any attempt to take the minor children out of the custody ofthe Petitioner – wife by force. The Respondent – husbandshall however be entitled to meet the children and spendtime with them as may be mutually agreed between theparties.

The Respondent – husband undertook not to initiateany criminal/contempt proceedings against the wife in theU.S.

The High Court directed the Respondent – husbandto file an Affidavit of Undertaking in terms of the conditionsmentioned in the Order dated 06.03.2018.

In compliance with the Order dated 06.03.2018 passed bythe High Court, the Respondent – husband took the followingsteps:-

a) Submitted an Affidavit of Undertaking dated 20.03.2018before the Delhi High Court to comply with thedirections stated hereinabove.

b) The Respondent obtained an Order dated 14.05.2018from the Superior Court of Stamford, the operative partof which is extracted hereinbelow:

“1. The prior orders for sole physical and legal custodyin favour of the Plaintiff shall be recalled.

2. The prior orders remain in place that Jasmeet Kaur isto return immediately to Connecticut with the minorchildren.

3. The minor children shall remain in the custody ofJasmeet Kaur, and the Plaintiff shall have reasonableinterim visitation with the minor children as agreed orCourt ordered upon the minor children’s return withJasmeet Kaur to Connecticut, until further custodyorders are determined by the Connecticut Superior Courtafter granting adequate opportunity of hearing to boththe parties.

4. That the Affidavit of Undertaking of the Plaintiff,confirming how he has confirmed his conduct to the A

B

C

D

E

F

G

H

AOrder of the High Court of Delhi at New Delhi on March,6, 2018, submitted as Exhibit B to the Motion for Order(Tab 2 of Exhibit 2) is hereby approved and so ordered.

That Attorney William Taylor is hereby appointed asescrow agent pursuant to Exhibit C to the Motion forBOrder (Tab 3 of Exhibit 2).”

c)The Respondent depositedan amount of USD 25,000 in anEscrow Account to ensure compliance with the paymentterms. This account would be operated in accordance withthe directions and Orders of the US Supreme Court atCStamford, Connecticut, USA where the matter between theparties was pending.

5.3The High Court vide Order dated 21.05.2018 directed thePetitioner – wife to return to the U.S. along with both thechildren within 3 weeks, failing which, the children wouldDbe handed over to the Respondent – husband along withtheir respective Passports.

5.4The Petitioner – wife challenged the Orders dated06.03.2018 and 21.05.2018 passed in the Habeas CorpusPetition before this Court by way of SLP (Crl.) No.4858-59/2018.E

6. We have heard Ms. Malvika Rajkotia, Ld. Counsel appearingfor the Petitioner – wife, and Mr. Anil Malhotra, Ld. Counsel appearingfor the Respondent – husband.

6.1During the course of arguments before this Court, theFPetitioner – wife agreed to return to the U.S with the minorchildren.

In these circumstances, we are not touching uponthe issue of jurisdiction.

7. We posted the matter for hearing in Chambers onG10.12.2019, when both parties alongwith the minor childrenappeared before us. The Petitioner and Respondent perusedthe directions which are being issued by this Order, andagreed to the same.

We direct that both the present Special LeaveHPetitions be disposed of with the following directions :-

i.The parties will jointly apply to the U.S. Embassy forrenewal of the U.S. Passport of their daughter –Ishnoor,and for issuance of an American passport for their son –Paramvir.

ii.The Petitioner – wife along with the two minor children-Ishnoor and Paramvir will return to Norwalk, Connecticut,USA within a period of two weeks from the issuance ofthe Passports of the minor children.

If the Petitioner fails to comply with the aforesaiddirection, the children will be handed over to the Respondent– husband who will take them back to the U.S.

iii.The Respondent – husband offered that upon returning tothe U.S., the Petitioner – wife may return to the matrimonialhome at Norwalk, Connecticut.

If the Petitioner – wife however chooses to liveindependently, the Respondent – husband will providesuitable accommodation to the Petitioner – wife in Norwalk,Connecticut, with all basic amenities.

In the alternative, the Petitioner – wife may identifya suitable accommodation, in the vicinity of Norwalk,Connecticut, so that the Respondent – husband has accessto the children.

iv.The Petitioner – wife undertakes to provide visitation andunsupervised access to the Respondent – husband everyweekend, which arrangement may be modified by a Courtof competent jurisdiction in the U.S.

v.The Respondent – husband offered that upon returning tothe U.S., the Petitioner – wife may continue to practicedentistry at their joint clinic viz. South End Dental Clinic atStamford.

If the Petitioner – wife is not interested to jointlypractice with the Respondent – husband at their clinic, theparties may take steps to divide the assets equally. Thedivision of assets shall be completed within a period of 4months.

A

B

C

D

E

F

G

H

Avi.The Respondent – husband will take steps to get the childrenadmitted to a reputed school in the vicinity.

vii.The Respondent – husband has agreed to provide thefollowing expenses to the Petitioner – wife:

1. $ 2000 approx.towards rentB2. $ 1000towards food/clothing/other needs3. $1000towards child care/nanny4. $200towards car expenses5. $100towards fuel expensesC6. $454.85towards health insurance of the wife7. $281.07towards health insurance of the minordaughter – Ishnoor8. $281.07towards health insurance of the minor sonD– Paramvir9. $899towards pre-school fees of Ishnoor10. $1500towards legal expenses That even though the aforesaid amounts work out to approximately,EUS $7,715, we direct that the amount be rounded off to US $8,000 permonth to the Petitioner – wife to meet all her expenses.

The payment of these expenses would be made for a maximumperiod of 12 months, or until the Petitioner–wife gets employed in theU.S. and obtains division of their assets, whichever is earlier.F

The amount deposited in the Escrow Account by the Respondent– husband as a security to ensure compliance of the payment terms willcontinue during this period. The Escrow Account shall be operated asper Orders passed by a competent Court in the U.S.

viii.After the assets are divided, both parties will share equallyGthe expenses towards the education and upbringing of thechildren.

ix.We were informed that the Petitioner – wife has institutedDivorce proceedings against the Respondent – husbandbefore the Family Court, Tis Hazari, New Delhi. TheH

JASMEET KAUR v. STATE (NCT OF DELHI) & ANR.[INDU MALHOTRA, J.]

Petitioner – wife has agreed to withdraw the divorceproceedings within a period of two weeks from this Order.

The Special Leave Petitions stand disposed of in the above-mentioned terms.

Ankit Gyan

SLPs disposed of.

A

B

C

D

E

F

G

H