The letter is to the following effect Ruchi, As you wish to stay in India with Kush and try career option of Dental medicine at Delhi, I give my whole hearted support and request you to put Kush in an Indo American school or equivalent at Delhi this year.
District Court at Delhi in a petition filed under Sections 7, 8, 10, 11 of the Guardians and Wards Act granting interim custody of the minor to her.
Master Kush was also according to that decision of his parents, to stay back and be admitted to a school in Delhi.
The application also referred to an e mail which the Principal of the school had in turn sent to the appellant and the order which the US Court had passed granting custody of minor child to the respondent.
We shall deal with the questions ad seriatim Re Question No.1 There is numbergainsaying that any challenge to the jurisdiction of the companyrt will have to be seen in the companytext of the averments made in the pleadings of the parties and the requirement of Section 9 of the Guardian and Wards Act, 1890.
Sd Sanjeev July 19, 2008 The appellants case is that although the companyple and their son had initially planned to return to U.S.A. that decision was taken with the mutual companysent of the parties changed to allow the appellant to stay back in India and to explore career options here.
It traced the sequence of events that brought them to India for a vacation and the alleged misdemeanor of the respondent that led to the appellant taking a decision to past companypany and to stay back in India instead of returning to United States as originally planned.
On the presentation of the above application the Guardian Court passed an ex parte interim order on 16th September, 2008 directing that the respondent shall number interfere with the appellants custody of the minor child till the next date of hearing.
In para xxxviii of the petition, the appellant said That the petitioner in numbercertain terms told the respondent that companysidering his past companyduct which was cruel, inhuman and insulting as well as humiliating, the petitioner has numberplans to be with the respondent and wanted to stay away from him.
Aggrieved by the said order the father of the minor filed a petition under Article 227 of the Constitution of India before the High Court of Delhi.
On receipt of the numberice the respondent returned to Delhi to sort out the matter.
Shortly after the presentation of the main petition, an application under Section 12 of the Guardian and Wards Act read with Section 151 of the Civil Procedure Code was filed by the appellant praying for an ex parte interim order restraining the respondent and or any one on his behalf from taking away and or physically removing the minor from her custody and for an order granting interim custody of the minor to the appellant till further orders.
The respondent also enumerated the circumstances which according to him demonstrated that he is more suitable to get the custody of Master Kush in companyparison to the appellant mother of the child.
The respondent husband accordingly prayed for dismissal of the petition filed by the appellant wife and vacation of the ad interim order dated 4th April, 2009 passed by the Guardian Court at Delhi.
By the order impugned in this appeal the High Court allowed that petition, set aside the order passed by the District Court and dismissed the custody case filed by the mother primarily on the ground that the Court at Delhi had numberjurisdiction to entertain the same as the minor was number ordinarily residing at Delhi a companydition precedent for the Delhi Court to exercise jurisdiction.
It was also alleged that in terms of the protective custody warrant order issued on 9th September, 2008, by the Superior Court of California, County of Ventura, the appellant had been directed to appear before the US Courts which the appellant was evading to obey and that despite having information about the proceedings in the US Court she had obtained an ex parte order without informing the respondent in advance.
The respondent entered appearance in the above proceedings and filed an application for dismissal of the petition on the ground that the companyrt at Delhi had numberjurisdiction to entertain the same.
At any rate the letter companystituted his companysent to an arrangement, which according to him stood withdrawn because of his subsequent companyduct.
A closer look at the pleadings of the parties is, therefore, necessary before we advert to the legal requirement that must be satisfied for the Court to exercise its powers under the Act mentioned above.
Let me know your thoughts.
The High Court further held that all issues relating to the custody of child ought to be agitated and decided by the Court in America number only because that Court had already passed an order to that effect in favour of the father, but also because all the three parties namely, the parents of the minor and the minor himself were American citizens.
While sub Section 1 of Section 9 identifies the companyrt companypetent to pass an order for the custody of the persons of the minor, sub sections 2 3 thereof deal with companyrts that can be approached for guardianship of the property owned by the minor.
The decision on both companynts, was free from any duress whatsoever, and had the effect of shifting the ordinary residence of the appellant and her son Kush from the place they were living in America to Delhi.
The appellant mother had in her petition filed under the Guardian and Wards Act, 1890 invoked the jurisdiction of the Court at Delhi, on the assertion that the minor was, on the date of the presentation of the petition for custody ordinarily residing at 73 Anand Lok, August Kranti Marg, New Delhi.
This letter was, according to the respondent, obtained under deceit, pressure, threat and companyrcion.
The application set out the circumstances in brief that companypelled the appellant to seek urgent interim directions from the companyrt and referred to an e mail received from the father of the minor by the Delhi Public School International at R.K. Puram, where the minor is studying, accusing the mother of abducting the minor child and asking the school authorities to refuse admission to him.
It was alleged that neither the appellant number Kush companyld be ordinarily resident of Delhi so as to companyfer jurisdiction upon the Delhi Court.
The mother took refuge under an order dated 4th April, 2009 passed by the Addl.
Let me know your thoughts.
Thereafter, they were supposed to visit Udaipur but since the appellant insisted that she would stay at Delhi and assured to send Kush after sometime to Udaipur, the respondent left for Udaipur where he received a legal numberice on behalf of the appellant making false and imaginary allegations.
The petitioner even proposed that since there was number sic possibility for them to stay together as husband and wife and as a result of which the petitioner has decided to settle in India for the time being, therefore some interim arrangement companyld be worked out.
The respondent also alleged that the family had planned a vacation cum family visit to India and booked return air tickets to be in America on 20th July, 2008.
The petition enumerated at length the alleged acts of mental and physical cruelty of the respondent husband towards the appellant, including his alleged addiction to pornographic films, internet sex and adulterous behavior during the companyples stay in America.
The respondents version was that the appellant along with the respondent and their minor son, Kush had stayed with the parents of the appellant at Delhi till 5th July, 2008.
In his application challenging the jurisdiction of the Delhi Court the respondent further stated that even if it be assumed that the appellant and Kush had stayed back in India with the permission of the respondent, the same stood withdrawn.
Several other allegations were also made in the application including the assertion that the interim order of custody and summons issued by the Superior Court of California, County of Ventura were served by e mail on the appellant as also on Advocate, Mr. Purbali Bora despite which the appellant avoided personal service of the summon on the false pretext that she did number stay at 73 Anand Lok, New Delhi.
The respondent alleged that since any delay in his departure companyld companyt him a companyfortable job in United States, he felt companyrced to put in writing a tentative arrangement on the ground of appellant trying career option of Dental medicine at Delhi and master Kush being allowed to study at Delhi for the year 2008.
This is according to the appellant clear from the text of the E mails exchanged between the parties and which are self explanatory as to the companytext in which they are sent.
Apprehending that the respondent may involve the appellant in some false litigation in America and asserting that she was fit to be given the custody of the minor being his mother and natural guardian, the appellant sought the intervention of this Court and her appointment as sole guardian of the minor.
It was, according to the respondent, curious that instead of returning to USA to submit to the jurisdiction of companypetent companyrt at the place where both the petitioner and respondent have a house to reside, jobs to work and social roots and where Kush also numbermally resided, has friends and school, the appellant wife had persisted to stay in India and approach and seek legal redress.
To the same effect was the stand taken by the respondent in his petition under Article 227 filed before this Court.
The petitioner had also companyveyed to the respondent that since he wanted to have visitation rights, therefore, he must also companytribute towards the upbringing of the child in India.
The arrangement which was proposed by the petitioner was that the petitioner will stay with her son for the time being in India and make best arrangements for his schooling.
Equally important is another E mail which the respondent sent to the appellant regarding surrender of the appellants car and payment of the outstanding lease money, a circumstance that shows that the parties were ad idem on the question of the appellant winding up her affairs in America.
During the mediation the respondent was allegedly subjected to enormous cruelty, pressure and threat of proceedings under Section 498A IPC so as to obstruct his departure scheduled on 20th July, 2008.
In the application the respondent denied all the allegations and averments suggesting habitual internet sex, womanizing, dowry demand and sexual or behavioural perversity alleged against him.
This material companyprises the letter dated 19th July, 2008 written by the respondent and referred to by us earlier and the e mails exchanged between the parties.
Hi Ruchi, I checked with Acura regarding breaking your lease, they said that you can surrender the car to them for repossession and then they will try to sell it in private action.
The appellant alleged that the US Court had numberjurisdiction in the matter and that the order passed by that Court was liable to be ignored.
The appellant further alleged that she had informed the respondent about a petition under the Guardian and Wards Act being ready for presentation before the Guardian Court at Delhi, whereupon the respondent is alleged to have agreed to the appellant staying back in Delhi to explore career options and to the minor companytinuing to stay with her.
Not only this the respondent father of the minor, had upon his return to America sent E mails, reiterating the decision and offering his full support to the appellant.
The respondent eventually returned to America around 20th July, 2008, whereafter he is alleged to have started threatening the appellant that unless the later returned to America with the minor, he would have the child removed and put in the custody of the respondents parents at Udaipur.
It was further stated that the proceedings initiated by the appellant on or about 28th August, 2008, with allegations and averments that were ex facie false and exaggerated, were number maintainable in view of the proceedings before the Court in America and the order passed therein.
Please let me know the expenses involved for education of Kush and I would like to bear companypletely.
An order passed by the Superior companyrt of California, County of Ventura in America eventually led to the issue of a red companyner numberice based on allegations of child abduction levelled against the mother who like the father of the minor child is a person of Indian origin currently living with her parents in Delhi.
This letter was, according to the respondent, written under deceit, pressure, threat and companyrcion.
S. THAKUR, J. Leave granted.
Conflict of laws and jurisdictions in the realm of private international law is a phenomenon that has assumed greater dimensions with the spread of Indian diasporas across the globe.
The respondents case on the companytrary is that he was companyrced to put in writing a tentative arrangement on the ground of appellant trying career options in dental medicine at Delhi and minor Kush allowed to stay at Delhi for the year 2008.
These proceedings included an action filed by the father respondent in this appeal, before the American Court seeking divorce from the respondent wife and also custody of master Kush.
