US court order apart, mother can keep the children

US court order apart, mother can keep the children
UNITED NEWS OF INDIA

NEW DELHI, FEB 22: Unmindful of an American court order restoring custody of two minor children to the father, the Supreme Court has put them under the care of the mother, keeping in view the welfare of the children.

"It will not be proper to be guided entirely by the fact that Sarita Sharma (the mother) had taken the children out of the USA in contravention of an order of a court of that country. So also, in view of the facts and circumstances of the case, the decree passed by the American court, though a relevant factor, cannot override the consideration of welfare of the minor children," the court observed.

The order of the American court was ignored by a division bench consisting of Justice G T Nanavati and Justice S N Phukan in an appeal filed by the mother.

The appeal was directed against a Delhi High Court judgement in a habeas corpus petition filed by the father (Sushil Sharma), seeking custody of Neil and Monika, aged seven and three years, respectively. It was alleged that the children were in illegal custody of Sarita Sharma, who he had married on December 23, 1988. The High Court allowed the petition and directed Sarita to restore the custody of the 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 him to take the children to the USA without any hindrance. Hence, the appeal before the apex court.

The judges said, "considering all the aspects relating to the welfare of the children, we are of the opinion that inspite of the order passed by the court in USA, it was not proper for the High Court to have allowed the habeas corpus writ petition and direct the appellant (wife) to hand over custody of the children to the respondent (father) and permit him to take them away to the USA."

The case revolved around proceedings in the USA for the dissolution of the marriage of the couple. The husband had filed a suit in the district court in Texas in 1995. The court had been passing interim orders from time to time with respect to the care and custody of the children.

In May 1997, Sarita had picked up the children from Sushil's residence in exercise of her visitation rights. It was alleged by the husband that she had flown away to India with the children without obtaining any order from the American court.

Incensed at this, Sushil had filed the habeas corpus writ petition in the High Court seeking custody of the children. Reversing the High Court order, the apex court noted that chances of Sarita returning to the USA with the children would depend on the joint efforts of the couple.

They would have to explain to the court in USA which had issued an arrest warrant against Sarita the circumstances leading to her departure from that country, it said.

"There is the possibility that both of them may thereafter be able to approach the court which passed the decree to suitably modify the order with respect to the custody of the children and visitation rights," the apex court said.