K.S. Sidhu, J.
1. This is a petition by a mother under Article 226 of the Constitution for a writ of habeas corpus directing production by the respondents of her minor daughters, Jeanna and Lisa, before the Court, and for an order granting their custody to her. She has also prayed for permission to remove the children from India to the United States of America.
2. The facts leading to the filing of this petition may be shortly stated here. The petitioner, Isabell Singh, was born of Jewish parents in Romania on June 26, 1939. At the age of 18, she acquired, the citizenship of the United States of America and still retains that nationality. She holds a Bachelor of Arts degree from the Ohio State University, Columbus, Ohio, and a Masters' degree in Library Science from the Kent State University, Kent Ohio. The respondent. Ram Singh, is a Hindu by religion and an Indian citizen, who obtained his B.A. from Chirawa College, Chirawa, Rajasthan, in 1967, and M.S. from the Birla Institute of Technology and Science, Pilani, Rajasthan in 1969. He obtained another M.S. degree majoring in Numerical Analysis, from Florida State University in 1971. Finally, he did his Ph.D. with Systems Analysis as the major subject, from the Florida Slate University in 1973. He worked in the United Slates on important assignments between 1970-71 and 1981-82. acquiring varied and vast experience in data processing survey analysis, coding and quantification of data and similar other disciplines. He returned to India sometime in the end of 1982. and took up a job as Associate Professor. Educational Development Division, Birla Institute of Teehnology and Science, Pilani, Rajasthan in 1983. He is still working in that Institute.
3. The parties (Isabell and Ram Singh) were married according to the Civil Laws of America at Tallahassee, Florida, U.S.A., on May 11, 1973. Jeanna and Lisa, their two daughters aforementioned, were born in this wedlock on Feb. 17, 1974 and April 7, 1976, respectively. The relations between the two spouses became strained sometime after the birth of the younger daughter. The husband filed a petition for divorce in a county Court of Florida. Thecounty Court passed a decree of divorce on 7-2-1980, dissolving the marriage between the parties, on the ground that it had irretrievably broken. The said Court also confirmed, approved and incorporated in its judgment and decree a document of the even date described as Stipulation and Agreement between the parties whereby the principal custody of Jeanna and Lisa was granted to the petitioner herein subject to reasonable rights of visitation to and with the children granted to Ram Singh their father. The specific visitation allowed to Ram Singh included 30 days during the summer vacation and on alternate major holidays. The Court modified the above decree in respect of the custody of children on Sept. 5, 1980, directing inter alia that Ram Singh shall have full and reasonable visitation to and with the children for six weeks during the summer vacation and alternate Christmas holidays.
4. The respondent Ram Singh shifted his residence from the State of Florida to a town called Richmond in the State of Virginia in 1981. The petitioner also moved to a town called Provo in the State of Utah along with the children. The children visited their father in Richmond and spent the entire summer vacation of 1981 with him. They returned to the custody and care of their mother in Provo at the end of August, 1981. For some reasons which are not clear on the record, the parties began to live together in the respondent's Richmond home in 1982. The divorced spouses along with their two children resided together in Richmond for nearly six months. The petitioner's version is that though they were living together, there was no resumption of sexual relations between them during that period. On the other hand, the respondent maintains that they lived together normally as husband and wife. It was during or around that period that the parties entered into an agreement, dt. Oct. 11, 1982, modifying their earlier agreement, dt. Feb. 7, 1980 regarding the custody of the children. Instead of the principal custody of the children being with the mother, as agreed upon earlier, they decided upon what they chose to describe in the deed of agreement as 'jointcustody' according to which the mother was entitled to keep the children with her during the school year and the father during the summer vacation from July 1 to August 15, every year. They also agreed that neither of them 'shall remove the children from the area of the State of Virginia, Washington D.C. or Baltimore without the written consent of the other party'. The father agreed to pay to the mother a sum of $ 400 per month for the support and maintenance of the children. The mother agreed to pay $ 100 per month to the Jewish School which the children were attending at that time. She also agreed to work in the said school to qualify for scholarship or reduced fee benefits offered by the school. The father had in the meantime shifted his residence from Richmond to some other town. Since the children were attending a school in Richmond and were staying with the mother for the school year, it was further agreed that the father would be responsible for the travel cost for the children in order for them to visit him at his new place of residence.
5. It appears that sometime before the execution of the aforementioned agreement, dated, Oct. 11, 1982, the father had filed a petition for custody of the children in the district Court of the county of Henrice. It is alleged that the Court granted interim custody to the mother and directed the case to be listed for final hearing after a few months. It was during the pendency of that petition that the agreement of Oct. 11, 1982 was entered into between the parties. The petitioner's grievance is that in violation of that agreement, the respondent went to the children's school on Nov. 21, 1982, and took them away from there on the pretext that he would take them for a holiday. Thereafter, he did not return the children either to the school or to the petitioner. Intead, he brought them to India, us the petitioner put it. 'fraudulently, stealthily and without the knowledge and consent of the petitioner'.
6. The respondent's reply in respect of the averments of the petitioner mentioned in the immediately preceding paragraph is rather ambiguous and even inconsistent. While dealing with the petitioner'saverment that according to the agreement between the parties none of them was entitled to remove the children from the area of the State of Virginia, Washington D.C., or Baltimore without the written consent of the other, the respondent pleaded that this did not mean that the parties were prohibited from taking the children to visit their family relations outside those areas and that in bringing the children to India he had acted in accordance with the spirit of the agreement inasmuch as it was essential for the children to visit his home country and meet his parents and relations living in India. He further pleaded that he had brought the children to India with what he described as the 'oral consent' of the petitioner.
7. The petitioner pleaded that after she had discovered that the children had been illegally snatched from her and furtively whisked away to India, she filed a petition for their sole custody in the district Court of the County of Henrice, in January, 1983. A copy of the petition is said to have been delivered to the respondent's counsel Sylvia Clute on Jan. 5, 1983. After hearing both sides, the Henrice County Court passed an order and decree granting sole custody of Jeanna and Lisa to their mother, the petitioner. The respondent described this decree as ex parte without specifically denying or admitting it. Sylvia Clute was his counsel or not. Another grievance of the petitioner is that after illegally depriving her of the custody of the children, the respondent sent her a telegram from India stating falsely that his mother was seriously ill and requested her to come to India immediately. This telegram was sent by the petitioner on his own behalf and on behalf of the children, Jeanna and Lisa. It is alleged that the petitioner gave a false address to the effect '7 Waterloo Street Calcutta Ram Singh' and this he did, as the petitioner put it, because the seems to be a sadist inasmuch as he derives pleasure by putting further inconvenience, harassment and expenditure' to the petitioner. On enquiries, the petitioner discovered that the address given, was false and fictitious since none was residing in the said building which is wholly anoffice complex. The petitioner was not able to trace out the whereabouts of the children until she received a letter (Annexure I) from them in August 1983. She replied this letter immediately (Annexure J) on August 22, 1983, telling the children that right then she did not have the money and her travel documents in order and that she would do everything possible to see them soon and that in the meantime they might 'ask Papa if he will let me see you'. It was from the letter of the children mentioned above that the petitioner came to know that the respondent and the children were residing in Pilani, Rajasthan and not in Calcutta as given out by the respondent in the aforementioned telegram.
8. After getting her travel documents updated and getting other necessary documents pertaining to the domestic relations between the parties authenticated, the petitioner arrived in India and filed the present petition for a writ of habeas corpus and other directions on May 8, 1984. She impleaded Ram Singh, the father of the children as respondent 1 and the Principal/Manager of Birla Shishu Vihar, Pilani as respondent 2. She impleaded the Principal/Manager of the school on the averment that the children are attending that school and may therefore be in the custody of the school authorities.
9. Apart from the allegation that the respondent is keeping the children in his custody in violation of the agreement of the parties and the orders and decrees of the Florida and Virgenia Courts in America, the petitioner pleaded that it is in welfare of the children that their custody must be restored to her. She mentioned in this context that she is a highly qualified librarian holding a Master's Degree in Library Science and that besides serving as a librarian in the Florida 'State University for about 8 years, she also served as such certain law firm and that her annual income when she left the U.S. for coming to India was $ 20,000/-and that she has an offer of a job in hand which would bring her an income of $ 26,000/- per annum. She pleaded that the daughters need motherly love and care at this tender age when they are growing andthat moreover she is entitled under the agreement between the parties to raise them in the Jewish faith, Jewish environment, Jewish social contacts and Jewish education. The respondent Ram Singh who was already married and had a daughter from his first wife before his marriage to the petitioner has resumed cohabitation with his first wife. Therefore, according to the petitioner, her daughters are likely to get step motherly treatment from the respondent's first wife if the respondent is allowed to keep their custody.
10. Ram Singh, respondent 1, contested this petition and filed two replies in answer to it. He admits that the petitioner is a Jew by religion, but adds in this context that her religious belief is not stable. According to him, she is under the influence of Mormons who believe in polygamy. He also admits that he had already been married and had a daughter from that marriage before he went to the U.S.A. for higher studies in 1969. He however says that he had obtained a decree of divorce against his first wife from a Florida Court in 1973 before he married the petitioner later that year. He admits that he filed a petition for divorce against the wife (petitioner herein) and obtained a decree of divorce against her on Feb. 7, 1980. According to him, he had to do so on the, persistent requests of the petitioner herself, who had no money to pursue her own petition in that behalf. He admits that the decree of divorce also incorporated their mutual agreement in respect of custody of the children, and their support and maintenance.
11. The respondent complained that the Mermons kept harassing him in a variety of ways under the influence of the petitioner after she had moved to Prove, Utah. His access to the children was eliminated, his telephone was bugged and mail tampered with. It was only after the petitioner's Mermon friend had disappeared , leaving her heart broken and the children without any assured means of support and maintenance that the respondent agreed to help find a job for the petitioner in Richmond and to reinstate her in his home for the sake of the welfare of the children and in the attempt to work out the maritallife once again. She moved from Prove to Richmond along with the children and took up residence with him. The respondent however complained that she was still under the influence of Mormons who tried to put pressure on him to convert to Mormanism. He discovered that he could not possibly bring the petitioner to see reason and therefore they once again decided to live separately. He admitted that thereafter he filed a petition in Henrico County Court for custody of the children. He also admitted that both of them arrived at an agreement regarding the joint custody of the children as per the deed, dt. Oct. 11, 1982. He admitted that he had brought the children from U.S.A. to India in Nov. 1982, but tried to explain that though he had not obtained the written consent of the petitioner for removal of the children from America to India, as required under the agreement dt. Oct. 11, 1982, but her oral consent had been obtained by him for such removal. He admitted that he had sent a telegram to her in Nov. 1982 about the illness of his mother bud did not care to explain why he had given a fictitious address as '7 Waterloo Street Calcutta Ram Singh'. He made a general denial of the allegations contained in para 3 of the petition without saying a word about the building 7 Waterloo Street being a wholly office building and the address given in the telegram being fictitious. He did not explain how his old mother who is normally a resident of his ancesteral village in district Jhunjhunu, Rajasthan happened to go to a far away place like Calcutta in a State of allegedly serious illness.
12. The Principal, Birla Shishu Vihar, Pilani (respondent 2) filed a separate written reply stating that the children Joanna and Lisa are day scholars and as such they are exclusively in the custody of their father Ram Sihgh, and that therefore the writ petition should be dismissed qua respondent 2.
13. On going through the averments in the petition and the accompanying documents, I issued rule nisi on May 11, 1984,' and directed that the children be prodouced in the Court on May 17, 1984. Ram Singh, respondent 1, appeared onMay 17 and undertook to produce the children on May 19, and did produce them as undertaken. I talked to the children alone in the Chamber for nearly 20 minutes, and found both of them to be very intelligent and fully alive to the difficult situation created for them by their divorced parents. I recorded their statements in question and answer form assuring them that these will be kept confidential and not shown to any one tilt after the Court decides on the question of their custody one way or the other. Thus, reassured, the children made their statements which speak for themselves. After, stating that they have been happily living with their father in India, both of them made it clear that they would like to go back to the United States of America. In order to rule out the possibility of any doubt and ambiguity, I separately asked both Joanna and Lisa to state where would they like to live, i.e. with the father in India or with the mother in United States, if such an option was given to them. Both stated one after the other that if such a choice was given to them they would like to go back to the United States with their mother. These statements were not disclosed by me to the parties till date, because I knew the Court concerned would not be able to decide on the question of custody for quite some time and it would be quite embarrassing to the children to go back to the custody of the parent who might construe these statements to be hostile to him or her. I had my misgivings at that time regarding the jurisdiction of this Court to adjudicate on the question of custody under the Guardians and Wards Act, 1890. I was all the time keeping in view the possibility that I may have to send the children to the district Court having jurisdiction in the local area of Pilani where the children are residing with their father, asking that Court to decide the matter in accordance with the provisions of Section 25, Guardians and Wards Act, 1890.
14. I tried in the Chamber on May 21 and 22th to persuade the parties to arrive at some amicable settlement which may ensure that the children keep their parental bonds firm and secure with both the parents and keep visiting to and with the parent who may not be having permanent custody. The efforts atmutual settlement between the parties failed, notwithstanding the fact that two senior counsel Mr. Tibrewal and Mr. Dhankar on the side of respondent, and Mr. Lodha on the side of the petitioner, made sincere and strenuous efforts outside the Court to bridge the gulf between the parties as they themselves told me about it in Chambers on May 24.
15. Under orders of the Court, the childrenspent a night with their mother in her hotelbetween May 23 and 24. On May 24, I madean order with the consent of the partiesregarding interim custody of the childrenduring the summer vacation of the Court asunder:--
'The children will remain in the custody of the petitioner from today onwards till June 15, 1984. Mr. Dhankar, learned counsel for the respondent, has undertaken to make arrangements for the stay of the petitioner in the Khasa Kothi, Jaipur. The room in the said hotel will be booked in the name of the petitioner and the children will be residing there with the petitioner till June 15, 1984. The petitioner will be entitled to take the children out to various places around Jaipur like Delhi, Agra, Udaipur etc. The petitioner who at the moment does not have the finances will be borrowing the money from the respondent.
The petitioner has given an undertaking that she will not remove the children to any place out of India.
The petitioner will hand over to the respondent custody of the children on June 16, 1984, but she will be entitled to see them in the house of the respondent at times convenient to both of them.
The respondent will have to be present himself in Khasa Kothi for taking the custody of the children from the petitioner on June, 16, 1984, at any time in the morning.
The respondent has agreed to lend to the petitioner any amount up to a maximum limit of Rs. 10,000/-. The petitioner has agreed to repay the loan on or before July 4, 1984. The arrangement regarding the lending of money by the respondent to the petitioner has been made by reason of the fact that the petitioner who is expecting a remittance from the United States has not yet received the money from there.
The parties will be in attandance in the Court on July 4, 1984. The respondent or the petitioner whosoever might be in the custodyof the children will be responsible to produce the children in the Court on July 4, 1984.'
16. It was hoped that this arrangement would convince the parties that an agreed solution of the controversy would be a lot more in the welfare of the children and to their own benefit than an order, decree, writ, or direction imposed by the Court. After talking to the parties in Chambers on the reopening of the Court after the summer vacation on July 4, 1984, I discovered that instead of resolving the controversy by mutual give and take in the interest of the children, their respective stands and attitudes had become more rigid and mutually recriminatory.
17. Now that the children had stayed in the custosy of the mother for nearly 15 days continuously during the summer vacation and had spent the remaining part of the vacation with their father. I decided to again talk to them alone in Chambers so as to be able to ascertain their wishes afresh in the light of their experience of the respective custody of their parents during the previous five or six weeks. The children told me that they would want to live with both of their parents, but added in this context that their father should migrate to America so that they could live with both of them there. On my further enquiry to the effect that if for one reason or the other it is not possible for their father to migrate to America would they like to stay with him in India or with their mother in America. They unhesitatingly gave their preference for stay with their mother in America. I have placed the transcript of this conversation on the record.
18. I have no hesitation in making the rule absolute for it is quite evident, on the basis of admitted documents on the record and already referred to in this judgment that as per the decree of a County Court of Florida, dt 7-2-1980 based on an agreement of even date between the parties, and as per their subsequent agreement, dt. 11-10-1982, the custody of the children according to law and fact, was with the mother in November 1982 when the father removed them from her custody and indeed from U. S. A. itself and brought them to India secretly and furtively and without the written consent of the petitioner. The father's averment that he brought them to India with the 'oral consent' of the petitioner is on the face of it wholly insincere and artificial in the facts and circumstances brought on the record. The mother had seen to it that a clause is inserted in the agreement dt Oct. 11, 1982, prohibiting either party from removing the children from the local areas of the State of Virginia Washington D. C. or Baltimore without the written consent of the other party. That being so, there was no question of the respondent approaching the petitioner for oral consent or of the petitioner giving oral consent for the removal of the children from U. S. A. to India, and that too during the school year when the custody was still with the mother and the children were expected to spend a few more months attending the school before they got their summer vacation in July, 1983. On these premises, I must hold that the father's custody of the children from Nov. 21, 1982 when he removed them from the custody of the mother till he produced them in this Court on May 19, 1984 was throughout illegal and unlawful, being in contravention of a decree of the Florida Court and his own solemn agreements in writing. Moreover, the mother has obtained a decree from the Court of the County of Henrico granting custody of the children exclusively to her. The father's custody being illegal, the rule deserves to be and is hereby made absolute.
19. Turning now to the next question as to whether this Court is competent to and should itself decide the question of future custody of these little girls or forward them to the district Court of Jhunjhunu for such decision, I find that there is ample authority for the view that this Court is competent to and should therefore decide this question itself. The adoption of the other course would entail unnecessary delay and avoidable expenditure to the parties in getting a decision in this unfortunate litigation. In Gohar Begum v. Suggi, AIR 1960 SC 93 their Lordships of the Supreme Court held that in proceedings of habeas corpus under Section 491, Cr. P.C., the High Court had the power to direct the custody of a minor to be placed with the applicant and that the right of the applicant to seek such relief under the Guardians and Wards Act, 1890 was no justificaion for denying her clear right for custody of her child under Section 491, Cr. P.C. Their Lordships quoted with approval Lord Danman C. J. in R. v. Greenhill (1836) 111 ER 922 at page 927 as follows :
'When an infant is brought before the Court by habeas corpus, if he be of an age to exercisea choice, the Court leaves him to elect where he will go. If he be not of that age, and a want of direction would only expose him to dangers or seductions, the Court must make an order for his being placed in the proper custody.'
Another passage which found favour with their Lordships is from Halsburys Laws of England Vol. IX, Article 1201 at page 702 and it reads :
'Where as frequently occurs in the case of infants conflicting claims for the custody of the same individual are raised, such claims may be enquired into on the return to a writ of habeas corpus and the custody awarded to the proper person.'
20. If the High Court is competent to decide on rival claims in respect of custody of a minor in the exercise of its jurisdiction in a writ petition for habeas corpus, which it certainly is, as held by their Lordships in Gohar Begum's case (supra), I see no difficulty in holding that the present dispute between the mother and father of Joanna and Lisa regarding their custody should be decided by this Court in these very proceedings under Article 226 of the Constitution. Section 3, Guardians and Wards Act, 1890, as amended by Act III of 1951 makes it absolutely clear that nothing in the said Act 'shall be construed to take away any power possessed by any High Court.' Thus, the power of the High Court to grant custody of these minor girls to either of their parents under Article 226 of the Constitution remaining unaffected by the Guardians and Wards Act, 1890.
21. Surinder Kaur v. Marbas Singh, AIR 1984 SC 1224, is another authority which supports the above view. That appeal before the Supreme Court arose from a judgment of the Punjab and Haryana High Court under Article 226 of the Constitution refusing to grant custody of a minor to the mother after the minor had been produced before the High Court in compliance with the writ of habeas corpus issued by it. The Supreme Court allowed the mother's appeal and consequently directed the father of the minor to deliver custody of the minor to the mother or her agent 'forthwith'. The mother in the cited case had come from the United Kingdom, armed with the order of the English High Court directing the father, who had already left England and come to India along with the minor, to hand over the custody of the minor to the mother. The facts in the instant case, though not exactly similar, are not far removed from the facts of the cited case. The petitionerin the instant case is also armed with a decree of the Florida Court granting custody of the minors to her. Even the subsequent agreement executed between the parties would show that in November 1982 when the father secretly removed the children from United States of America to India, the custody of the children was with the mother (being the school year period) and the removal was in contravention of the said agreement and therefore illegal. The mother again approached a U. S. Court for restoration of the custody of the children to her after they had been removed from her custody and indeed from U. S. itself. On 7-2-1983, the District Court of the County of Henrico granted the mother's petition for sole custody of her minor daughters to her.
22. This takes me to the question of more paramount importance in this case as to whether the welfare of the children lies in their custody with the mother or with the father. The children have expressed their unequivocal preference for mother's custody inspite of the fact that they appeared before this Court immediately after spending nearly a year and a half in the father's exclusive custody in India. Two different Courts in America, dealing with juvenile and domestic relations disputes have granted their custody to the mother. Agreements executed between the parties from time to time also provide for the principal custody of the mother. One of the agreements provides that the children shall not be taken by either parties out of the local area of the State of Virginia, Washington D. C and Baltimore without the written consent of the other. The father removed the children from the United States of America itself and brought them to India in secret and furtive manner in utter disregard of the above orders, decrees and agreements. Of course, the father is well placed in life and can give the children all comforts in life which money can buy. As already stated, the children do not want to live with him without their mother. They have opted for mother's custody, if the father is not willing to go back to America and live with them and their mother in that country. If the children are forced to stay with the father in India, they may have to face a step-mother, whom the father had already married before marrying the petitioner. The mother may not be as affluent and as academically qualified as the father. But she is a qualified Librarian holding a Master's degree in that subject and has long experience of working as a Librarianin a State University. She appears to be in good health. She is around 44 years of age. She can certainly earn enough to give the children decent education, maintenance and support. There is no dearth of jobs in the United States of America for such qualified persons. In fact, she has placed on the record a document showing that she has an offer of a job to her with effect from June 1, 1984. If she accepts the said job, it would bring her an income of $ 26,000/- per annum. I am thus satisfied that it would be in the welfare of both Joanna and Lisa if their custody is restored to the petitioner and she is allowed to take them to the United States of America. I would accordingly direct that the respondent Ram Singh shall handover the custody of both Joanna and Lisa to the petitioner forthwith. The petitioner is entitled and is hereby authorised to take the children to the United States of America. The passports of the children which are lying in the custody of the Registry of this Court shall be returned to the petitioner immediately. The respondent shall pay a sum of Rs. 2,000/- to the petitioner for the costs in these proceedings.