SARITA SHARMA Vs. SUSHIL SHARMA

JUDGEMENT

(1.) This appeal is filed against the judgment and order of the High Court of Delhi in Writ Petition (Cri.) No. 656 of 1997. Sushil Sharma had filed the writ petition seeking a writ of Habeas Corpus in respect of two minor children Neil and Monica, aged 7 and 3 years respectively. It was alleged that the children are in illegal custody of Sarita Sharma, whom he had married on 23-12-1988. The High Court allowed the petition and directed Sarita to restore the custody of two children to Sushil Sharma. The passports of the two children were also ordered to be handed over to Sushil Sharma and it was also declared that it was open to Sushil Sharma to take the children to U.S.A. without any hindrance. Sarita has, therefore, filed this appeal.

(2.) Sushil initiated proceedings for dissolution of his marriage in the District Court of Tarrant County, Texas, U.S.A. in 1995. In the said proceedings interim orders were passed from time to time with respect to the care and custody of the children and visitation rights of Sushil and Sarita. Even while the divorce proceedings were pending Sushil and Sarita lived together from November, 1996 to March, 1997. They again separated. This time Sarita had taken the children along with her. It was stated in the writ petition that the Associate Judge, taking note of the fact that Sarita had gone away with the children, passed an order for putting the children in the care of Sushil and Sarita was only given visitation rights. On 7-5-1997 Sarita had picked up the children from Sushil's residence in exercise of her visitation rights. She was to leave the children in the school the next day morning. Sushil got the information from the school that the children were not brought back to the school. On making inquiries he came to know that Sarita had vacated her apartment and gone away somewhere. He had, therefore, informed the police and a warrant for her arrest was also issued. It was further stated in the petition that his further inquiries revealed that Sarita had, without obtaining any order from the American Court, flown away to India with the children. It was further stated in the petition that on 12-6-1997 a divorce decree was passed by the Associate Judge and in view of the conduct of Sarita he has also passed an order declaring that the sole custody of the children shall be of Sushil. She had been denied even the visitation rights. Sushil then filed a writ petition in the Delhi High Court on 9-9-1997. Sarita's contention in the reply to the petition was that by virtue of the orders dated 5-2-1996 and 2-4-1997 she and Sushil were both appointed as Possessory Conservators and, therefore, on 7-5-1997 both the children were in her lawful custody. It was also her contention that she had brought the children to India with full knowledge of Sushil. It was also her contention that Sushil is not a person fit to be given physical custody of the children as he is alcoholic and violent as disclosed by the material on record of the divorce proceeding. The High Court held that in view of the interim orders passed by the American Court Sarita committed a wrong in not informing that Court and taking its permission to remove the children from out of the jurisdiction of that Court. The High Court took note of the fact that a competent Court having territorial jurisdiction has now passed a decree of divorce and ordered that only the father i.e. Sushil, shall have the custody of the children. The High Court rejected the contention of Sarita that the decree of divorce and the order for the custody of the children were obtained by Sushil by practicing fraud on the Court and further observed that even if that is so, she should approach the American Court for revocation of that order. Taking this view the High Court allowed the writ petition and gave the directions referred to above.

(3.) The learned counsel appearing for the appellant submitted that in a Habeas Corpus petition what a Court should consider is whether the person, in respect of whom a writ of Habeas Corpus is sought, is kept in illegal custody or is detained against his wish. He further submitted that a Habeas Corpus petition is not an appropriate proceeding for securing custody of minor children staying with the mother. He further submitted that when she came to India with the children she was the natural lawful guardian of the children and also managing conservator of the children. With respect to the decree of divorce and order for custody of the children, he submitted that the said decree and order were obtained by the respondent by suppressing material facts from the Court and the said decree and order, even otherwise, should not be taken as binding on the Courts in India, as they are not consistent with the law applicable to the parties. He lastly submitted that even if the said decree and order are treated as valid for the present the High Court should not have allowed the writ petition without considering the welfare of the children.