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The issue of custody of the children should be decided by the court having closest connection with t

Jasmeet Kaur v. State (NCT of Delhi & Another) & Jasmeet Kaur v. Navtej Singh SLP Crl No. 4858-4859/2018 & SLP Civil No. 20022/2019 –  12th December, 2019

The bench consisting of Jusice Uday Umesh Lalit and Justice Indu Malhotra pronunced the judgment and since both of the Special Leave Petitions filed arise out of common facts, a common judgement is passed and disposed of.

The background facts of the present SLP’s are: The Respondent/husband migrated to the US with his parents in 1994 while he was 14 years old & had been permanently residing there for the past 25 years & has acquired US citizenship & practicing as a dentist there, while the petitioner/wife had moved to US in 1998 while she was 17 years old to pursue a degree in Computer Science from Hunter College, New York. She met the respondent, sometime in 2000 while she was a student. After meeting the respondent, she decided to do a course in Dentistry and subsequently qualified as a dentist. On 22.8.2006, the parties got married in New York and got a certificate of registration of marriage from the Marriage License Bureau, New York. On 23.12.2007, the parties came in New York and solemnised their marriage under Sikh rites in the presence of their families. The partied have lived in US throughout the subsistence of their marriage and jointly ran a dental clinic at Connecticut & had their daughter Ishnoor born on 27.8.2012 & she got US citizenship by birth. Later the couple, their daughter t& the respondents visited Delhi to attend the petitioner’s brother’s marriage and the petitioner was pregnant at that time. The petitioner refused to come back and also refused to allow her daughter to come back to US. She delivered her son in India, but since the couple had US citizenship, the boy too got US citizenship. The husband initiated custody proceedings to get his children before the US County Court, Connecticut.

The SC of Connecticut passed an ex parte interim order on 17.11.2016 where interim custody of both the children was granted to the respondent with supervised visitation rights for the wife/petitioner. On 25.1.2017, SC of India passed an order, directing the wife to go back to US with the minor children and granted custody of both the children to the respondent with supervised visitation rights for the wife/petitioner.

The petitioner later on filed a Guardianship petition u/s. 7, 9, 11, 25 of the Guardians & Wards Act, 1890 r/w S.6 (a) of the Hindu Minority and Guardianship Act, 1956 before the Family Court of Delhi. The Respondent filed an application under order VII, Rule 11 CPC seeking rejection of the petition. The Court on 26.12.2016 allowed the respondent’s application and dismissed the petitioner’s petition. The latter then filed a petition in Delhi HC challenging the order passed on 26.12.2016 The HC held that the Hindu Minority and Guardianship Act, 1956 does not override the Guardians and Wards Act, 1890. S. 9 of the Guardians and Wards Act, 1890 provides that the Court where the child ‘ordinarily resides’ would have jurisdiction to decide the issues of guardianship and custody.

The Court held that it would not be difficult for the parties’ children to get accustomed to their lives in US & joint parenting won’t be possible if the wife remains in India and retains the sole custody of the children and dismissed the petition of SLP 20022/2019. The respondent later filed a writ of habeaus corpus praying for his wife to produce their children and their passports.

The issue was as to whom the custody of children ought to go to?

The Court observed that both the parties from their conduct it is evident that they had abandoned their domiciles and that the petitioner’s act to not return and not allow her children too to return is an act of self interest and not of best interests, especially her children’s.

The HC held that both the children have the right to be brought up by both their parents at US & at the children’s best interests the petitioner/wife is to return to US with her children within two weeks from the issuance of the passport of the son, Paramvir. The HC also declared that the respondent/husband has to ensure he does not treat his wife/petitioner in an adverse or hostile manner. They held that the wife/petitioner will be granted temporary physical and legal custody of children. It is the petitioner’s right and decision to choose and live independently, if she wishes to do so and not be forced by the respondent. If the petitioner decides to live independently, the respondent should pay for her accommodation and living expenses like rent, food, clothing, childcare, car, fuel, health insurance, legal expenses, for her as well as the children(for the daughter educational expenses should be borne by the respondent) and if possible to ensure the accommodation is in the same area of New York.

These payments are to be handled by the respondent for a maximum period of 12 months or until the wife gets employed in US & get their assets divided – whichever period is earlier.

The Escrow A/c shall operate as per the standards set by a competent court in US. After the assets are divided, both parties shall equally share their expenses in the upbringing of children. Since the petitioner has agreed to withdraw divorce, no divorce proceedings shall be initiated against them.

The SLP’s shall stand disposed thereof.

–  Nardhana Ram

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