NRI’S MATRIMONIAL DISPUTES – JURISDICTION OF INDIAN COURTS

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Special Leave Petition (Crl.) No. 4858­4859/2018
Jasmeet Kaur …Petitioner
versus
State (NCT of Delhi) & Anr. …Respondent
WITH
Special Leave Petition (Civil) No. 20022/2019
Jasmeet Kaur …Petitioner
versus
Navtej Singh …Respondent
J U D G M E N T
INDU MALHOTRA, J.

  1. The present Special Leave Petitions arise out of matrimonial
    disputes between the parties. SLP (Crl.) No. 4858­4859/2018
    1
    has been filed by the Petitioner – wife to challenge the Orders
    dated 06.03.2018 and 21.05.2018 passed by the High Court in
    a Habeas Corpus Petition (Crl) No. 725 of 2017 filed by the
    Respondent – husband, seeking issuance of a writ of habeas
    corpus for production of the children, who have been illegally
    abducted by the Petitioner – wife from his custody in the USA.
    SLP (C.) No. 20022/2019 arises out of a Guardianship
    Petition filed u/S. 9 of the Guardians and Wards Act, 1890
    (“GWA”) by the Petitioner – wife praying for permanent and sole
    custody of the minor daughter – Ishnoor now aged about 7
    years, and minor son – Paramvir aged about 2 years.
    Since both SLPs arise out of common facts, they are being
    disposed of by this common judgment.
  2. The background facts in which the present SLPs have been filed
    are briefly set out herein below:
    2.1 The Respondent – husband migrated to the U.S. with his
    parents in 1994, when he was 14 years old, and has been
    permanently 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.
    2.2 The Petitioner – wife moved to the U.S. in 1998, when she
    was 17 years old to pursue a degree in Computer Science
    from Hunter College in New York. The Petitioner 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.
    2
    2.3 On 22.08.2006, the parties got married in New York and
    obtained a certificate of registration of marriage from the
    Marriage License Bureau, New York.
    On 23.12.2007, the parties came to India, and solemnized
    their marriage under Sikh rites in the presence of their
    families.
    2.4 The parties have lived in the U.S. throughout the
    subsistence of their marriage, and jointly started running
    a dental clinic viz. ‘South End Dental Clinic’ at Norwalk,
    Connecticut.
    The daughter – Ishnoor was born out of the wedlock
    on 27.08.2012 and acquired U.S. citizenship by birth.
    2.5 After the birth of their daughter, the Petitioner – wife
    applied for citizenship, and obtained U.S. citizenship in
    April, 2013.
    2.6 On 26.01.2016, the couple along with their daughter –
    Ishnoor and the parents of the Respondent came to New
    Delhi, to attend the wedding of her brother, on a return
    ticket. The Petitioner – wife was pregnant at that time. The
    parties were scheduled to return to the U.S. on
    06.03.2016. The Petitioner – wife however refused to
    return to the U.S. alongwith Ishnoor.
    While she was in India, she delivered the second child
    viz. Paramvir on 15.09.2016 at New Delhi. Since both
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    parties were U.S. citizens, the minor son – Paramvir would
    be an American citizen by birth.
  3. Proceedings in the U.S.
    3.1 The husband instituted custody proceedings before the US
    County Court at Stamford, Connecticut seeking custody of
    the children.
    3.2 The Superior Court of the State of Connecticut at
    Stamford/Norwalk passed an ex ­ parte interim Order
    dated 17.11.2016 whereby temporary custody of both
    children was granted to the Respondent – husband, with
    supervised visitation rights for the Petitioner – wife.
    3.3 On 25.01.2017, the Superior Court passed a Final Order
    directing the Petitioner – wife to return to the U.S with the
    minor children, and granted sole, legal and physical
    custody of both children to the husband, with supervised
    visitation rights to the Petitioner – wife.
    The Superior Court ordered that when the wife
    appears before the Court, she would be given an
    opportunity to be heard, and to lead evidence with respect
    to the issue of custody of the children, which would be
    dealt with fairly, after evidence was led by both parties.
  4. Guardianship Proceedings in India
    4
    4.1 The Petitioner – wife filed a Guardianship Petition bearing
    G.P. No. 64/2016 u/S. 7,9, 11 and 25 of the Guardians
    and Wards Act, 1890 read with S. 6 (a) of the Hindu
    Minority and Guardianship Act, 1956 before the Family
    Court, Tis Hazari, New Delhi seeking sole and permanent
    custody of both the children.
    4.2 The Respondent – husband filed an Application under
    Order VII, Rule 11 CPC seeking rejection of the plaint.
    4.3 The Family Court vide Order dated 26.12.2016 allowed
    the Application, and dismissed the Guardianship Petition.
    The Court held that the parties and their daughter –
    Ishnoor were “ordinarily residing” in the U.S. at the time
    of filing the Guardianship Petition, and their son –
    Paramvir was a U.S. citizen by birth, consequently, they
    would be governed by the laws of the U.S.
    4.4 The Petitioner – wife filed MAT. Appeal (FC) No. 3 of 2017
    u/S. 19 of the Family Courts Act, 1984 before the Delhi
    High Court to challenge the Order dated 26.12.2016
    passed by the Family Court.
    The Delhi High Court vide Order dated 19.09.2017
    dismissed the Appeal, and held that the issue of custody
    of the children should be decided by the court having
    closest connection with the children, which is the Courts
    in the U.S.
    5
    4.5 Aggrieved, the Petitioner ­wife challenged filed Civil Appeal
    No. 2291 of 2018 before this Court to challenge Judgment
    dated 19.09.2017.
    4.6 This Court vide Order dated 20.02.2018 allowed the Civil
    Appeal filed by the Petitioner – wife, and set aside the
    Order passed under Order VII Rule 11. The case was
    remitted to the Family Court to be decided on merits.
    4.7 The Family Court vide Order dated 20.08.2018 decided
    that the Indian Courts would have no jurisdiction to
    entertain the Petition u/S. 9 of the Guardians and Wards
    Act.
    The Family Court held that the Petitioner – wife was
    an American citizen. She had an American Passport, with
    an OCI Card. The minor girl – Ishnoor was also holding an
    American passport. On account of the Petitioner – wife
    having prolonged her stay in India, the passport of the
    daughter expired in October 2017, which has not been
    renewed ever since. Insofar as the son is concerned, the
    Petitioner ­ wife had not obtained the U.S. Passport even
    though he was an American citizen by birth. Both children
    had no valid documents for their stay in India. Since the
    children were residing in India in breach of immigration
    laws, they would not fall within the ambit of ‘ordinarily
    residing’ in India as provided by Section 9 of the Guardians
    and Wards Act.
    6
    On the issue of custody, the Family Court held that
    the paramount interest of the children would lie in shared
    parenting 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 held
    that the Indian Courts would lack jurisdiction to entertain
    the Guardianship Petition.
    Aggrieved, the Petitioner – wife filed MAT. Appeal (FC)
    No. 244 of 2018 before the Delhi High Court to assail the
    Order dated 20.08.2018 passed by the Family Court. The
    High Court by the impugned Judgment and Order dated
    01.07.2019 dismissed the appeal.
    The High Court held that the Hindu Minority and
    Guardianship Act, 1956 does not override the Guardians
    and Wards Act, 1890 which is supplemental to the latter.
    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 High Court noted that the Petitioner – wife had
    purchased properties in the U.S., and had applied for U.S.
    citizenship in 2012, which was granted to her in 2013, and
    was not surrendered to date. These facts reflect that the
    Petitioner – wife did not intend to make India her
    permanent home.
    7
    The conduct of the parties revealed that they had
    abandoned their domicile of origin in India, and therefore,
    could not be said to be ‘ordinarily residing’ in India. As a
    consequence, the courts in Delhi would have no
    jurisdiction to entertain the Petition u/S. 9 of the
    Guardians and Wards Act, 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, since she was 7 years old, and
    had spent the initial 4 years of her life in the U.S. Once she
    starts going to school in the U.S., she would acclimatize
    herself to that country. The minor son – Paramvir being a
    little over two years old would be in a position to adapt to
    the lifestyle and customs of the US.
    The High Court held that this was not a case where
    the children had grown up and rooted themselves in India.
    The welfare of the children would lie in joint parenting by
    both parents in the U.S., which was not possible if the wife
    retained the sole custody of the children in India. The wife
    could therefore not be granted permanent and sole custody
    of the children.
    The Judgment and Order dated 01.07.2019 passed by
    the High Court dismissing the MAT. Appeal (FC) No. 244 of
    2018 has been challenged by the Petitioner – wife before
    this Court by way of SLP (C.) No. 20022/2019.
  5. Habeas Corpus Proceedings in India
    8
    5.1 After dismissal of the first round of litigation pertaining to
    the guardianship of the children, the Respondent –
    husband filed Writ Petition (Crl.) No. 725 of 2017 before
    the Delhi High Court for issuance of a Writ of Habeas
    Corpus to direct the Petitioner­wife to produce the minor
    children i.e. Ishnoor and Paramvir before the Court, along
    with their U.S. Passports. The Respondent – husband
    further prayed that the High Court permit him to take the
    minor children with him to the United States.
    The High Court vide Judgment and Order dated
    06.03.2018 allowed the Habeas Corpus Petition and
    directed the Petitioner – wife to return to the U.S. along
    with the two minor children within three weeks.
    It was evident from the conduct of the parties that
    they had abandoned their domicile of origin i.e. India, had
    set up their matrimonial home in the U.S. and raised their
    daughter in that environment. When the Petitioner – wife
    decided not to return to the U.S. in January, 2016 she
    acted in her self­interest, and not in the best interest of
    her children.
    The High Court held that the children have the right
    to be brought up by both parents as a family in the U.S. It
    is in the best interest of the children that the Petitioner –
    wife returns to the U.S.
    9
    The High Court issued directions to the Respondent –
    husband to ensure that once the Petitioner – wife returns
    to the U.S., she is not faced with any adversity or hostility
    by the Respondent – husband, or the American legal
    system.
    The High Court further directed the Respondent –
    husband to move the Superior Court, Judicial District
    Stamford, Norwalk for re­call of Orders dated 17.11.2016
    and 25.01.2017 wherein the Petitioner – wife was directed
    to grant temporary physical and legal custody of the minor
    children to the Respondent – husband. Furthermore,
    when the Petitioner – wife lands in the U.S. with the two
    minor children, they shall not be removed from her
    custody.
    The two minor children shall continue to remain in
    the custody of the Petitioner – wife even after she returns
    to the U.S., till the competent court in the U.S. passes
    fresh orders on the aspect of temporary/permanent
    custody of the children, after granting adequate
    opportunity of hearing to both parties. The Respondent –
    husband would not make any attempt to take the minor
    children out of the custody of the Petitioner – wife by
    force. The Respondent – husband shall however be
    entitled to meet the children and spend time with them as
    may be mutually agreed between the parties.
    10
    The Respondent – husband undertook not to initiate
    any criminal/contempt proceedings against the wife in the
    U.S.
    The High Court directed the Respondent – husband to
    file an Affidavit of Undertaking in terms of the conditions
    mentioned in the Order dated 06.03.2018.
    5.2 In compliance with the Order dated 06.03.2018 passed by
    the High Court, the Respondent – husband took the
    following steps: ­
    a) Submitted an Affidavit of Undertaking dated
    20.03.2018 before the Delhi High Court to comply
    with the directions stated hereinabove.
    b) The Respondent obtained an Order dated
    14.05.2018 from the Superior Court of Stamford,
    the operative part of which is extracted hereinbelow:

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

  1. The prior orders remain in place that Jasmeet
    Kaur is to return immediately to Connecticut with
    the minor children.
  2. The minor children shall remain in the custody
    of Jasmeet Kaur, and the Plaintiff shall have
    reasonable interim visitation with the minor
    children as agreed or Court ordered upon the minor
    children’s return with Jasmeet Kaur to
    Connecticut, until further custody orders are
    determined by the Connecticut Superior Court after
    11
    granting adequate opportunity of hearing to both
    the parties.
  3. That the Affidavit of Undertaking of the Plaintiff,
    confirming how he has confirmed his conduct to
    the Order 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
    as escrow agent pursuant to Exhibit C to the
    Motion for Order (Tab 3 of Exhibit 2).”
    c) The Respondent deposited an amount of USD
    25,000 in an Escrow Account to ensure compliance
    with the payment terms. This account would be
    operated in accordance with the directions and
    Orders of the US Supreme Court at Stamford,
    Connecticut, USA where the matter between the
    parties was pending.
    5.3 The High Court vide Order dated 21.05.2018 directed the
    Petitioner – wife to return to the U.S. along with both the
    children within 3 weeks, failing which, the children would
    be handed over to the Respondent – husband along with
    their respective Passports.
    5.4 The Petitioner – wife challenged the Orders dated
    06.03.2018 and 21.05.2018 passed in the Habeas Corpus
    Petition before this Court by way of SLP (Crl.) No.4858­
    59/2018.
    12
  4. We have heard Ms. Malvika Rajkotia, Ld. Counsel appearing for
    the Petitioner – wife, and Mr. Anil Malhotra, Ld. Counsel
    appearing for the Respondent – husband.
    6.1 During the course of arguments before this Court, the
    Petitioner – wife agreed to return to the U.S with the minor
    children.
    In these circumstances, we are not touching upon the
    issue of jurisdiction.
  5. We posted the matter for hearing in Chambers on
    10.12.2019, when both parties alongwith the minor children
    appeared before us. The Petitioner and Respondent perused
    the directions which are being issued by this Order, and
    agreed to the same.
    We direct that both the present Special Leave Petitions be
    disposed of with the following directions :­
    i. The parties will jointly apply to the U.S. Embassy for
    renewal 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 childrenIshnoor and Paramvir will return to Norwalk, Connecticut,
    USA within a period of two weeks from the issuance of the
    Passports of the minor children.
    13
    If the Petitioner fails to comply with the aforesaid
    direction, 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 to
    the U.S., the Petitioner – wife may return to the
    matrimonial home at Norwalk, Connecticut.
    If the Petitioner – wife however chooses to live
    independently, the Respondent – husband will provide
    suitable accommodation to the Petitioner – wife in
    Norwalk, Connecticut, with all basic amenities.
    In the alternative, the Petitioner – wife may identify a
    suitable accommodation, in the vicinity of Norwalk,
    Connecticut, so that the Respondent – husband has
    access to the children.
    iv. The Petitioner – wife undertakes to provide visitation and
    unsupervised access to the Respondent – husband every
    weekend, which arrangement may be modified by a Court
    of competent jurisdiction in the U.S.
    v. The Respondent – husband offered that upon returning to
    the U.S., the Petitioner – wife may continue to practice
    dentistry at their joint clinic viz. South End Dental Clinic
    at Stamford.
    If the Petitioner – wife is not interested to jointly
    practice with the Respondent – husband at their clinic,
    14
    the parties may take steps to divide the assets equally.
    The division of assets shall be completed within a period
    of 4 months.
    vi. The Respondent – husband will take steps to get the
    children admitted to a reputed school in the vicinity.
    vii. The Respondent – husband has agreed to provide the
    following expenses to the Petitioner – wife:
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  6. $ 2000 approx. towards rent
  7. $ 1000 towards food/clothing/other
    needs
  8. $1000 towards child care/nanny
  9. $200 towards car expenses
  10. $100 towards fuel expenses
  11. $454.85 towards health insurance of
    the wife
  12. $281.07 towards health insurance of
    the minor daughter –
    Ishnoor
  13. $281.07 towards health insurance of
    the minor son – Paramvir
  14. $899 towards pre­school fees of
    Ishnoor
  15. $1500 towards legal expenses
    That even though the aforesaid amounts work out to
    approximately, US $ 7,715, we direct that the amount be
    rounded off to US $ 8,000 per month to the Petitioner –
    wife to meet all her expenses.
    The payment of these expenses would be made for a
    maximum period of 12 months, or until the Petitioner –
    wife gets employed in the U.S. and obtains division of their
    assets, whichever is earlier.
    The amount deposited in the Escrow Account by the
    Respondent – husband as a security to ensure compliance
    16
    of the payment terms will continue during this period. The
    Escrow Account shall be operated as per Orders passed by
    a competent Court in the U.S.
    viii. After the assets are divided, both parties will share equally
    the expenses towards the education and upbringing of the
    children.
    ix. We were informed that the Petitioner – wife has instituted
    Divorce proceedings against the Respondent – husband
    before the Family Court, Tis Hazari, New Delhi. The
    Petitioner – wife has agreed to withdraw the divorce
    proceedings within a period of two weeks from this Order.
    The Special Leave Petitions stand disposed of in the abovementioned terms.
    …..……………………………J.
    (UDAY UMESH LALIT)
    ..….…………………………..J.
    (INDU MALHOTRA)
    New Delhi
    December 12, 2019.
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