Madhav Unde vs Priyamvada Madhav Unde and others

Vaze, J.—Dhanwanti B. Joshi was an ambitious girl. After majoring in Economics and Political Science in 1973 she acquired post-graduate diplomas in advertising, public relations and business administration. She had set her sights across the oceans towards United States of America - a lodestone which attracts many a young man and woman across the globe. Dhanwanti after a stint in the Travel Corporation of India and Air India, moved on to an Italian Airlines, An Italian in July 1979. As is usual with the Airline people, Dhanwanti got a free passage to U.S.A. where she landed in November, 1981.

Dhanwanti had by then just crossed her thirties and thought of matrimony. She did not wait for a Prince Charming to cross the path of her life; rather she preferred to follow the orthodox but mundane Indian way of locating a groom through friends, relatives and media. She advertised in the matrimonial columns "India Abroad", a periodical widely read by the India community settled in U.S.A.

Madhav Under is a Mechanical and Metallurgical Engineer who was working in the R & D Wing of the Ministry of Defence. He proceeded to the United States of America in 1973 where he acquired his M.S. in Welding Engineering and was gainfully employed with Messrs. Fruehauf Corporation, L.B.T. Division, Omaha, in the State of Nebraska. Madhav had a none-too-happy matrimonial life. He was married to one Bhagyavati under the Hindu rites in October, 1967 that is much before he had proceeded to the United States. In October, 1977 Madhav obtained a default judgment from Michigan Court dissolving his marriage to Bhagyavati. Madhav entered the matrimonial bond second time in January, 1968 when he married one Dorris, a girl of Dominique Republic origin. Dorris filed a petition for divorce in November, 1980 on the grounds of cruelty and the marriage was dissolved in November 1980.

Back home, Madhav''s first wife Bhagyavati filed a petition in April 1981 for divorce in the District Court at Nagpur which was contested by Madhav.

It is in this background that Madhav responded to the advertisement inserted by Dhanwanti, and their marriage was registered in the office of the Country Judge, Douglas County, of the State of Nebraska in June 1982. Dhanwanti moved to her matrimonial home and a son Abhijeet was born out of the wedlock on 15-3-1983.

This third marriage of Madhav, like the previous ones floundered on the rocks and Dhanwanti had to solicit the help of her mother Vijaya who came over from Bombay to give solace and comfort to her daughter. Dhanwanti left the matrimonial home which she found intolerable along with Abhijeet sometime in April 1983 and moved to the shelter for Abused Women in California, where they stayed till May 1983. On 10th May 1983 Madhav started proceedings in the District Court of Douglas County. Nebraska, for dissolution of marriage after averring that neither he nor the respondent who by then had assumed the name Priyamvada (nee - Dhanwanti) is a party to any other pending action for divorce, separation or dissolution of marriage.

On 19th May 1983, the District Judge of Douglas County, Nebraska, passed a temporary order to the effect that the temporary care, custody and control of the minor child Abhijeet shall be in the District Court of Douglas County. Nebraska, with "the possession of the minor child awarded to the respondent Priyamvada, subject to the reasonable rights of visitation by Madhav, said visitation to be arranged between the parties through their attorneys". Priyamvada was not to remove the minor child from the jurisdiction of the Court; was to surrender her passport to her attorney in California, to be held in escrow until further Order of that Court.

On 23rd September 1983, a decree of dissolution of marriage was passed on the ground that the marriage has irretrievably broken. As regards the child Abhijeet, the same arrangement viz., the legal custody of the child to be placed in the Douglas County District Court, Nebraska, with possession to be awarded to Priyamvada and Madhav to be awarded reasonable rights of visitation was continued. The father was ordered to pay child support, which he did not pay and the child Abhijeet was taken to India by his grandmother Vijaya Joshi on 20-2-1984.

On 11th April 1984 Madhav made an oral Motion before the District Court, alleging that Priyamvada has removed the child from the jurisdiction of the Court of Douglas County. Nebraska, upon which the Court ordered Priyamvada to deliver the child to the Court within 72 hours for the purpose of allowing Madhav''s visitation and that in the event Priyamvada failed to do so, she would be "found in contempt to that Court". On 30th April 1984 Madhav again appeared before the District Court and Priyamvada though not appearing in person, was represented by her attorney. The Court modified the earlier decree of 13th October 1983 and changed the custody of Abhijeet from the Court to temporary custody in Madhav "until a final hearing can be held on all issues that are pending before the Court".

The curtain was dropped by order of 19th April 1985 by which the District Court denied the motion for permanent custody to Priyamvada as well as denied Madhav''s citation for orders as to why Priyamvada should not be held in contempt.

Learning that Priyamvada has moved to India and that Abhijeet is in her custody, Madhav moved the present writ petition of Habeas Corpus for custody of his minor son Abhijeet. On 3-4-1986, parties filed Consent Terms with a view to evolving a working arrangement till the final disposal of the matter by which temporary custody of the child was given to Madhav who had undertaken not to remove the child from the jurisdiction of the Court.

In habeas corpus proceedings as respects a child the sole question for determination is weather the respondent is in lawful custody of the child. However, when, as in the present case, the custody of the child is with his mother and the petitioner is the father, several other issues such as the legal capacity of the parents to marry, the antenuptial law applicable to the parties to the marriage, etc., would also arise in a tertiary way and will have to be discussed. All the same, a discussion of these secondary issues is not, and in the nature of things, could not, be intended to influence in any manner a judgment in other Courts which may be seized of those issues or may, in further, be seized, if one of the parties brings in an action therefor.

With the increased mobility of populace from continent to continent, the problems of "limping marriages" and removal of children by either of the spouse have become frequent, so much so that the Family Divisions of the English Courts have issued the following Practice Directions :-

"It sometimes happens that, without leave of the Court or in contravention of an order of the Court, a child is removed from the jurisdiction.

Where the child has been taken abroad, the Foreign and Commonwealth Office Consular Department can offer practical (but not legal) advice on the recovery of custody. This advice will be intended to supplement that given by the aggrieved person''s legal representative.

Inquiries for assistance in tracing missing abducted children should be referred directly to the FCO Consular Department, Clive House, Petty France, London SWIH 9 HD."

(1984) 3 All ER 640.

In habeas corpus petitions impugning upon ward ship jurisdiction, a Court exercising jurisdiction over its ward must never lose sight of a fundamental feature of the jurisdiction that it is exercising namely, that it is exercising a ward ship, not an adversarial, jurisdiction. Its duty is not limited to the dispute between the parties; on the contrary, its duty is to act in the way best suited in its judgment to serve the true interest and welfare of its ward. In exercising ward-ship jurisdiction, the court is a true family Court, its paramount concern is the welfare of its ward. It will, therefore, sometimes be the duty of the Court to look beyond the submissions of the parties in its endeavour to do what it judges to be necessary. (See Re E(SA) (a minor) (ward ship) - (1984) 1 All ER 289.

All the same, adversarial arguments, the type which are not to be expected in a ward ship proceedings, have been addressed by Counsel on either side. Mr. Bhonsale, learned Counsel for the petitioner, has laid stress on the fact that Priyamvada has disobeyed the orders of the Court, inasmuch as she removed the child from the territorial jurisdiction of the State of Nebraska and that Madhav has an order passed by a Court of competent jurisdiction in his favour by which, though the custody of the child is with the Court, the actual possession has been given to him. According to Mr. Bhonsale, the respondent Priyamvada is not in a financial position to bring up the child in a manner commensurate with the status of Madhav, who, being well employed, can afford to give the best education to his son. Priyamvada is - argues Counsel - unemployed and living at the mercy of her relatives in Bombay and hence, is not a fit person with whom the custody of Abhijeet should continue.

Mr. Pai, learned Counsel for the respondent-wife, on the other hand, says that fight from the inception Madhav has been playing fraud and had concealed the fact of his first marriage with Bhagyavati from her when he responded to her advertisement. As the marriage with Bhagyavati was subsisting - argues Counsel, the act of Madhav entering into a second marriage would be a bigamous one under the laws of India or America. As regards the action of Priyamvada in disobeying the orders of the Court which had enjoined her from leaving the jurisdiction of the State or Nebraska, Mr. Pai says that it might have been a mistake or that she was ill-advised but that alone and by itself would not disentitle her from the custody of her child.

Which law should govern the capacity of the parties to marry ? The dual domicile doctrine prescribes that a marriage is invalid unless, according to the law of the domicile of both contracting parties at the time of the marriage, they each have capacity to contract that particular marriage. Thus a marriage between a man of Jewish faith domiciled in Egypt and a woman of the same faith domiciled in England, the latter being his niece, is invalid, since a marriage between person so related, though permissible in Egypt, is prohibited by English Law; (1962) 3 All ER 873. The second alternative doctrine which may be termed as the law of the intended matrimonial home or intended family domicile would predicate the capacity to marry upon the law of the husband''s domicile at the time of the marriage, for normally it is in the country of that domicile that the parties intend to establish their permanent home. Thus, if a marriage had "a real substantial connection" with England by virtue of that being where they intended to make their home, it was held that a marriage of a United States national with a Brazilian divorcee solemnised in Nevada was a valid marriage because the parties intended to make England as their matrimonial home notwithstanding that the Brazilian law did not recognise the decree of the wife''s divorce. Lawrence v. Lawrence, (1985) 1 All ER 506. A Pakistani Muslim living in England pronounced Talaq in England against his wife living in Pakistan. The Talaq was not revoked and 90 days later the marriage was declared dissolved according to the Pakistani law. The Talaq divorce though valid under Pakistani law, was not recognised in England. (R. v. Secretary of States for the Home Department, ex parte Fatima, (1984) 2 All ER 458

The Supreme Court, in Smt. Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and Another, has underscored the modern theory of conflict of Laws which recognises, and in any event, prefers the jurisdiction of the State which has the most intimate contact with the issued arising in the case. In this view of the matter it can be said that the judgment and decree of the Nebraska District Court should be respected by this Court as Madhav and Priyamvada had the most intimate contact with that jurisdiction at the time the divorce proceedings were initiated in the Court.

Under S. 13 of the C.P.C. a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties, except, under certain circumstances enumerated in the section. One of the circumstances that takes away the conclusiveness of the foreign judgment is where the said judgment has not been given on the merits of the case, or where it has been obtained by fraud. It has been urged by Counsel for the petitioner that as Priyamvada was represented by Counsel in the proceedings before the District Court at Nebraska, the judgment should be taken as a judgment on merits and that none of the circumstances which would take away its conclusive nature were present in this case.

The Achilles heel of the defence of the respondent Priyamvada consists of her flight from America, which, according to the Counsel for the petitioner, is an act which this Court should not encourage. We were taken through the other documents such as reports appearing in the newspapers regarding involvement of Priyamvada in Airline tickets fraud, but nothing has been brought out that she was a suspect in that case and we do not find any material to support this contention.

That leaves us with the uncontroverted fact that Priyamvada did disobey the order of the District Court inasmuch as she left the territorial jurisdiction without the permission of the Court.

In P v. W (1984) 1 All ER 866, which was also a custody matter of a minor, where the father was given visitation but the order was disobeyed by the mother, the question arose as to how the breach should be viewed. Expectedly, the father moved the Court for contempt, and the Court observed :-

"I look at these matters in that order A contempt of court is a very serious matter which involves the element of ''fault'' and where the liberty of the subject is at stake. There are a number of authorities, to which I do not intend to refer, but I am quite satisfied that any failure to obey an order of the court must be wilful, a deliberate intention."

As regards the breach of order of access, it must be shown that the breach was deliberate and "when dealing with problems of access, every other course should be considered or attempted before issuing proceedings for contempt. Such proceedings should be regarded as the weapon of last resort."

Whenever there is a concluded determination between the parties, the Courts of this country have been according full faith and credit to the judgment of foreign Courts. See Marggarate Maria Pulparampil Nee Feldman Vs. Dr. Chacko Pulparampil and Others, But, the instant orders in question regarding the custody of Abhijeet passed by the District Court of Nebraska, were not conclusive. The learned Judge has himself used the word "temporary" at various places. No doubt, when a citation was made before him to punish Priyamvada for contempt, he did issue an order which was in the nature of a punitive one, intended to coerce the respondent to produce the child before the Court. It was a matter between the learned District Judge and the alleged contemner Priyamvada and not something between Madhav and Priyamvada. The District Judge was satisfied that the Motion for punishing Priyamvada for contempt should denied, and ultimately dismissed the same. It is thus obvious that the order of the District Court does not give an added edge to the argument of the Petitioner that she is not a fit person to have the custody of the child. The ephemeral nature of the order of the District Judge would be gauged from the fact that after dissolution of the marriage Priyamvada could not stay on the soil of United States of America and the order of visitation could only have effect till she could lawfully stay in U.S.A. No doubt, the District Judge has also refused to give permanent custody of Abhijeet to Priyamvada but the reasons that prompted him so to do are not apparent from the record. Once the marriage was dissolved, there was no option for the wardship Court but to give custody of the minor to an American citizen namely Madhav who was present in Court.

It appears that Priyamvada tried to continue her stay in the United States of America by marrying an American of Peurtorican origin. She has averred that it was a marriage of convenience; that she never shared matrimonial home with Peurtorican but like other visiting foreigners who intend to perpetuate their stay in America, it was a marriage of convenience. Such marriages of convenience, like the flags of convenience flown by various ships to avoid the labour Laws of America, are not unknown and there is no reason to disbelieve Priyamvada when she says that she had entered into this marriage of convenience with the Peurtorican. At any rate, we need not delve into this marriage when the Peurtorican is not in India and our primary concern is about the welfare of the child. Abhijeet is being presently looked after by his grand-mother Vijaya Joshi. They have a comfortable accommodation at Khar. Dhanwanti, after this sour experience with Madhav, visited Australia and has acquired some proficiency in computer technology. According to her, she has been offered jobs by Indian Travels Private Ltd. and Gogate Salt and Chemicals and expects to draw a salary between Rs. 2,000/- to Rs. 2,500/- per month.

As regards the contention that the petitioner would be able to bring up Abhijeet by taking his mother to Nebraska, Dhanwanti has shown that it is impracticable proposition because Madhav''s mother is 76 and would not be able to stand the rigors of climate of Nebraska, and Madhav will not be able to devote total attention to Abhijeet nor can his mother do so because of her advancing age. On the other hand, Abhijeet is brought up in a congenial milieu in the Joshi household where there are a number of relatives to look-after him. Dhanwanti has filed an affidavit stating that she does not want to leave India till her child attains majority and would be able to look after the child. It would be neither desirable nor prudent to impose any condition on the much travelled Dhanwanti, that she will not leave India at all but considering the background of her family, we feel that the child Abhijeet would be able to grow into the naturally congenial atmosphere in the Joshi household much so because he is only three years'' old which requires maternal love and affection.

In G v. G (1985) 1 All ER 225 Lord Fraser of Tullybelton, observed :-

"The jurisdiction is such custody cases is one of great difficulty. xx xx xx xx xx The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory. x x x x x x x x x x x x x x x x x x x x x x x x x I would only add that, in cases dealing with the custody of children, the desirability of putting an end to litigation, which applies to all classes of cases, is particularly strong because the longer legal proceedings last, the more are the children, whose welfare is at stake, likely to be disturbed by the uncertainty."

As well settled a writ of habeas corpus is a Prerogative Process for securing the liberty of the subject by affording an effective means of immediate release from wrongful detention, whether in prison or private custody. By it Court commands the production of the subject and inquires into the cause of detention. The foundation of power is wrongful confinement and not any other infirmity which may entitle the petitioner to relief at the full Trial. In the present case at this stage it cannot be said that custody of three old child with his mother is wrongful, moreso when a serious dispute is raised about the very validity and conclusiveness of foreign judgment itself. In any case the controversy raised involves disputed questions of law and facts. Therefore taking the totality of circumstances into consideration, we find that the Respondent Dhanwanti should be allowed to retain the custody of the child for the present and at this state. The interim order passed on 3-4-1986 is revoked. Custody of Abhijeet be handed over to the mother Dhanwanti forthwith. The petitioner-father Madhav will have right of visitation between 4.00 p.m. and 6.00 p.m. everyday. Subject to the above, rule is discharged.

At this state, Mr. Bhonsale on behalf of the petitioner prays for leave to appeal to the Supreme Court as well as stay of this order of custody.

Both the prayers are refused.

Rule discharged.