NDLI: Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw and Anr.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Minor child Divorce in USA
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Constitution of India
Case Type	Writ Petition
Court	Supreme Court of India
Disposal Nature	Petition Disposed Off
Headnote	Constitution of India, 1950-Article 32-Divorce in USA-Minor child-Custody given to mother and visitation rights to father by American Court-Father abducted the child and brought to 'India against express orders of the American Court-Orders of proper foreign Court-Should be regarded-Child restored to mother to be taken back to U.S.A. The petitioner, a citizen of the United States of America residing in Michigan, was married to the first respondent,' an Indian citizen, who after marriage settled down in the United States and secured employment. A male child was horn to the couple in America. Differences arose between them and the petitioner along with her son took up separate residence. She fled a petition for divorce in the Circuit Court for the country of saginaw, Michigan which granted a decree holding that there had been a breakdown in the marriage relationship and declared the marriage as dissolved. The decree also directed that the petitioner shall have the care, custody and control of the minor child until he reaches the age of 18 years. The first respondent, the father was given visitation rights by the decree. On the subject of travel with the minor child to any place outside the United States, it was directed that only on a petition the Court shall make a determination as to whether travel is in the best interest of the minor child, and what conditions shall be set-forth to ensure the child's return. The Court also directed that the first respondent shall notify the Office of the Friend of the Court promptly concerning any changes in his address.Taking advantage of the weekend visitation rights granted by the said decree, the first respondent picked up the child from his school and secretly left America for India on January 11th, 1986. He bad not intimated the Court about his intention to take the child out of its jurisdiction and outside the country nor had he given the slightest indication to the petitioner about his intention to leave America permanently for India. Immediately before leaving for India, the first respondent sold away his immovable property and it was only from the Airport that he posted a letter tendering his resignation from his job.Coming to know that the minor child had not been returned to the day care centre by the first respondent, the petitioner moved' the CircuitCourt complaining against the violation by the first respondent of the terms of the Court's decree: The Court issued a warrant of arrestagainst the first respondent on the ground of unlawful taking and retaining the child outside the State, followed by the issue of a Federal warrant of arrest on the ground of unlawful flight to avoid prosecution. Since the .first respondent bad already come over to India with theminor child these warrants could not be executed in the United States.The Consular Officer, American Consulate General, Bombay, visitedthe residence of the first respondent's parents in Pone but the minor child was not present there and the grand-parents reported that the child and his father had gone North, possibly to Kashmir and that they were not aware of their exact whereabouts. Thereafter, the .petitionerfiled a petition in this Court seeking the issuance of a writ of Habeas Corpus directing the respondents to produce in Court her minor childand to hand over custody to her as the person entitled to it under the order of a competent foreign Court.In response to the notice issued by this Court, the first respondent appeared and produced the child in Court and filed a counter-affidavitexplaining his conduct the explanation tendered by him was that his father was seriously ill and be wanted bis father to see the child. It wasfurther submitted that the· child prefers to stay with him in Pune and hence he was admitted in a School there and that it will be in the interestof the child that be should be allowed to reside with him in India.
Judge	Hon'ble Mr. Justice V. Balakrishna Eradi
Neutral Citation	1986 INSC 230
Petitioner	Mrs. Elizabeth Dinshaw
Respondent	Arvand M. Dinshaw And Anr.
SCR	[1987] 1 S.C.R. 175
Judgement Date	1986-11-11
Case Number	270

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