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The Delhi High Court has held that the claim of a mother under Section 6 of the Hindu Minority and Guardianship Act, 1956 as the natural guardian of a minor cannot be used to decide the jurisdiction of the Family Court under Section 9 of the Guardians and Wards Act, 1890.
The judgment was passed by a Division Bench of Justices GS Sistani and Jyoti Singh in an appeal under Section 19 (1) of the Family Courts Act, 1984 for setting aside a Family Court’s judgment. The Family Court had dismissed the appellant mother’s plea seeking guardianship of her two minor children.
Civil marriage was performed between the appellant and the respondent-father in the USA in August 2006. Subsequently, in December 2007, the marriage was solemnized at New Delhi.
The appellant alleged that she faced immense hostility from the respondent and his family on several grounds. She claimed that the respondent was an absentee husband and did not give her any love or support. Subsequently, a baby girl was born out of the marriage in August 2012 in the USA. The child was a US citizen.
Marital discord between the parties continued even after the birth of the child. Meanwhile, in March 2013, the appellant also became an American citizen.
In January 2016, the appellant travelled to India for the marriage of her brother and decided to settle down in India permanently. She then discovered that she was expecting a second child. When the respondent also travelled to India for the wedding, the appellant informed her husband that she would like to permanently settle in India.
Thereafter, in June 2016, the respondent filed an application in the US County Court at Stamford, Connecticut seeking temporary and permanent custody of the minor daughter and the unborn son.
In September 2016, a baby boy was born. The appellant alleged that between September 2016 and November 2016, the respondent kept harassing her over phone calls and text messages, threatening that he would take the children away.
In November 2016, the appellant sent a legal notice to the respondent seeking maintenance under Section 125 CrPC read with Section 18(1)(b) of Hindu Adoption and Maintenance Act, 1956.
She also filed a guardianship petition under Sections 7, 9, 11 and 25 of the Guardians and Wards Act, 1890 read with Section 6(a) of the Hindu Minority and Guardianship Act, 1956 and Section 7(g) of the Family Courts Act.
Meanwhile, the American court granted temporary custody of the children to the respondent, ex-parte. Later, the Superior Court of the State of Connecticut granted sole physical and legal custody of the children to the respondent with supervised visitation rights to the appellant mother.
The Family Court also dismissed the guardianship petition on the ground of lack of territorial jurisdiction. The matter thereafter reached the Supreme Court, which remanded it to the Family Court after observing that the welfare of the child was paramount and the same could not be the subject matter of final determination in proceedings under Order VII Rule 11 CPC.
Meanwhile, the respondent had also moved a writ of habeas corpus before the Delhi High Court. While allowing the writ petition, the Court directed the appellant to return to the USA with the respondent and the children subject to certain conditions to secure the rights of the appellant. The conditions were accepted and incorporated by the American court in its order.
After the Supreme Court’s order, the trial in the guardianship petition commenced. The petition was dismissed once more on the ground that it lacked territorial jurisdiction. While opining that the children should be with both parents in the USA, the Family Court also observed that the residence of the children was illegal.
This order became the subject matter of the present appeal.
The appellant contended that the Family Court failed to appreciate Section 9 of the Guardians and Wards Act, 1890 in its correct perspective as the phrase “ordinary resident” was a matter of intention. It was submitted that the Court overlooked the fact that the second child was born in India.
She thus pleaded that the son being born in India qualified as an “ordinary resident” of India. Also, since the daughter was in her mother’s legal custody and her “ordinary resident” status would follow the appellant’s ordinary residence i.e. Delhi, India.
It was submitted that the citizenship of the parties and their children was irrelevant and the same was not related to being a resident. A citizen of one country could thus be an ordinary resident anywhere in the world.
It was also argued that the Family Court failed to appreciate the statutory presumption in favour of the mother under Section 6 of the Hindu Minority & Guardianship Act, which provides that custody of a child below five years of age is ordinarily belongs to the mother.
The appellant also informed the Court that she wanted to stay in India and to give up her USA citizenship. She has already applied for Indian citizenship and taken an oath of allegiance towards the Indian Constitution.
Invoking the legal doctrines of tender years and matrimonial preferences, the appellant thus sought the custody of her children.
After hearing the parties, the Court noted that as on date, the appellant was enjoying her OCI status along with her American passport, which was valid till 2023. She had not moved any application before the US court for renouncing her American citizenship and had not applied for Indian citizenship at the time of the trial before the Family Court.
It was further noted that while the passport of the minor girl had expired in October 2017 and her OCI status had also expired, the baby boy was also not an Indian citizen, and did not have any passport or OCI in his favour as yet.
While deciding on the issue of the interplay between Section 9 of Guardians and Wards Act and Section 6 of Hindu Minority & Guardianship Act, the Court observed that the two Sections operated in different fields, independent of each other.
“While Section 6 deals with natural guardian of a Hindu Minor, Section 9 lays down the rules with respect to territorial jurisdiction of the Court in which the application for custody of the child has to be filed.”
It stated that Section 9 only dealt with the territorial jurisdiction of the court and to decide the jurisdiction, what was to be considered was the “ordinary residence of the child”.
Once the question of jurisdiction is settled, it is open for a mother to place reliance on Section 6 in a case where the child is below five years of age, it added.
However, the argument that the claim of the mother under Section 6 should be used to decide the jurisdiction of the Court under Section 9 cannot be accepted, the Court held.
“…therefore, we reject the contention of the appellant that the provisions of Section 6 will control the jurisdiction of the Court and since the younger child is below five years of age and is in the custody of the appellant at New Delhi, the courts at Delhi will have the jurisdiction.”
Rejecting the argument that the appellant and her children were ordinary residents of Delhi, the Court stated that a very careful examination of the facts indicated that the parties always intended to make USA their home.
In view of these facts, the Court held that the courts at Delhi would not have jurisdiction to entertain the petition filed by the appellant in view of Section 9 of the GWA.
The Court then proceeded to determine “what is the best interest and welfare of the two minor children”.
Relying on judgments passed by the Supreme Court, the provisions of the Juvenile Justice Act, as well as the Convention on the Rights of the Child, the Court concluded that the best scenario for the child would normally be living with both the parents in a happy, loving and caring environment.
The Court noted that both the parents acquired American citizenship and worked jointly as dentists till 2016 and had acquainted themselves with the systems and the environment of that country. It thus held that the welfare of the children lied with both the parents and in shared parenting in America.
“The two children are, thus, entitled to, as a matter of right, all the privileges, security, both social and financial, in America. At the age in which the two children are, we do not think that it would be difficult for them to get accustomed to the life and environment at America..
…we are dealing with an appellant who is highly educated and chose to live in America to give herself the best in life. We see no reason why we should deprive the children of good education, good environment, good medical care and the joint love of both parents.”
The Court also recorded that the appellant had not been able to place on record any material to infer that the respondent would have an adverse influence on the minor children.
It further observed,
“While we have no doubts in our mind that the mother is a primary care giver, but we cannot also shut our eyes to the fact that even the father can contribute a lot to the upbringing of a child and, in fact, the love, affection, guidance and moral support of a father is extremely important in shaping the life of the children. Thus, the requirement of the respondent in the lives of the children, in our view, is, if not more, equally important for the holistic growth of the children. Paramount consideration being the crucial factor, we hold that the welfare of the children lies with both the parents and in shared parenting.”
The Court stated that if the appellant goes to the USA, the court of competent jurisdiction there would decide the issue of guardianship and custody as per law and keeping in mind the welfare of the children.
It thus upheld the order of the Family Court that sole custody of the children could not go to the appellant mother.
The appellant was represented by advocates Malavika Rajkotia and Rytim Vohra.
The respondent was represented by advocates Anil Malhotra, Ranjit Malhotra, Sarvesh & Rajat Bhalla.
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