REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Special Leave Petition (Crl.) No. 4858­4859/2018

Jasmeet Kaur  …Petitioner

versus

State (NCT of Delhi) & Anr.        …Respondent

WITH

Special Leave Petition (Civil) No. 20022/2019

Jasmeet Kaur …Petitioner  

versus

Navtej Singh        …Respondent

J U D G M E N T

INDU MALHOTRA, J.  

1. The present Special  Leave Petitions  arise  out of  matrimonial

disputes between the parties. SLP (Crl.) No. 4858­4859/2018

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has been filed by the Petitioner – wife to challenge the Orders

dated 06.03.2018 and 21.05.2018 passed by the High Court in

a  Habeas Corpus  Petition  (Crl)  No.  725 of  2017  filed by  the

Respondent – husband, seeking issuance of a writ of  habeas

corpus  for production of the children, who have been illegally

abducted by the Petitioner – wife from his custody in the USA.

SLP (C.) No. 20022/2019 arises out of a  Guardianship

Petition  filed u/S.  9 of the Guardians and Wards Act,  1890

(“GWA”) by the Petitioner – wife praying for permanent and sole

custody of the  minor  daughter  – Ishnoor  now aged about  7

years, and minor son – Paramvir aged about 2 years.  

Since both SLPs arise out of common facts, they are being

disposed of by this common judgment.

2. The background facts in which the present SLPs have been filed

are briefly set out herein below:

2.1 The Respondent – husband migrated to the U.S. with his

parents in 1994, when he was 14 years old, and has been

permanently residing there since the past over 25 years,

and has acquired U.S. citizenship. The Respondent –

husband has been practicing as a Dentist in the U.S.  

2.2 The Petitioner – wife moved to the U.S. in 1998, when she

was 17 years old to pursue a degree in Computer Science

from Hunter College in New York. The Petitioner met the

Respondent sometime in 2000, while she was a student.

After meeting the Respondent, she decided to do a course

in Dentistry, and subsequently qualified as a Dentist.

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2.3 On 22.08.2006, the parties got married in New York and

obtained a certificate of registration of marriage from the

Marriage License Bureau, New York.

On 23.12.2007, the parties came to India, and solemnized

their marriage under Sikh rites in the presence of their

families.

2.4 The parties have lived in the U.S. throughout the

subsistence of their marriage, and jointly started running

a dental clinic  viz.  ‘South End Dental Clinic’ at Norwalk,

Connecticut.

The daughter – Ishnoor was born out of the wedlock

on 27.08.2012 and acquired U.S. citizenship by birth.

2.5 After the birth of their daughter, the Petitioner – wife

applied  for  citizenship,  and obtained U.S.  citizenship  in

April, 2013.

2.6 On 26.01.2016, the  couple  along with their  daughter  –

Ishnoor and the parents of the Respondent came to New

Delhi, to attend the wedding of her brother, on a return

ticket. The Petitioner – wife was pregnant at that time. The

parties were scheduled to return to the U.S. on

06.03.2016. The Petitioner – wife however refused to

return to the U.S. alongwith Ishnoor.  

While she was in India, she delivered the second child

viz.  Paramvir on  15.09.2016 at  New  Delhi. Since both

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parties were U.S. citizens, the minor son – Paramvir would

be an American citizen by birth.

3. Proceedings in the U.S.

3.1 The husband instituted custody proceedings before the US

County Court at Stamford, Connecticut seeking custody of

the children.

3.2 The Superior Court of the State of Connecticut at

Stamford/Norwalk passed an  ex ­ parte  interim Order

dated 17.11.2016 whereby temporary custody of both

children was granted to the Respondent – husband, with

supervised visitation rights for the Petitioner – wife.

3.3 On 25.01.2017, the Superior Court passed a Final Order

directing the Petitioner – wife to return to the U.S with the

minor children, and granted sole, legal and physical

custody of both children to the husband, with supervised

visitation rights to the Petitioner – wife.  

The Superior Court ordered that when the wife

appears before the Court, she would be given an

opportunity to be heard, and to lead evidence with respect

to the issue of  custody of the  children,  which would be

dealt with fairly, after evidence was led by both parties.

4.Guardianship Proceedings in India

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4.1 The Petitioner – wife filed a Guardianship Petition bearing

G.P. No. 64/2016 u/S. 7,9, 11 and 25 of the Guardians

and  Wards  Act, 1890 read  with  S. 6 (a) of the  Hindu

Minority and Guardianship Act,  1956 before the Family

Court, Tis Hazari, New Delhi seeking sole and permanent

custody of both the children.

4.2 The Respondent – husband filed an Application under

Order VII, Rule 11 CPC seeking rejection of the plaint.

4.3 The Family  Court  vide  Order  dated 26.12.2016 allowed

the Application, and dismissed the Guardianship Petition.

The Court held that the parties and their daughter –

Ishnoor were “ordinarily residing” in the U.S. at the time

of filing the Guardianship Petition, and their son –

Paramvir was a U.S. citizen by birth, consequently, they

would be governed by the laws of the U.S.  

4.4 The Petitioner – wife filed MAT. Appeal (FC) No. 3 of 2017

u/S. 19 of the Family Courts Act, 1984 before the Delhi

High Court to challenge the Order dated 26.12.2016

passed by the Family Court.  

The Delhi  High Court  vide  Order  dated 19.09.2017

dismissed the Appeal, and held that the issue of custody

of the children  should  be  decided  by the court  having

closest connection with the children, which is the Courts

in the U.S.

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4.5 Aggrieved, the Petitioner ­wife challenged filed Civil Appeal

No. 2291 of 2018 before this Court to challenge Judgment

dated 19.09.2017.  

4.6 This Court vide Order dated 20.02.2018 allowed the Civil

Appeal filed  by the  Petitioner  –  wife,  and set  aside the

Order passed under Order  VII Rule 11. The case  was

remitted to the Family Court to be decided on merits.

4.7 The Family  Court  vide  Order  dated 20.08.2018 decided

that the Indian Courts would have no jurisdiction to

entertain the Petition u/S. 9 of the Guardians and Wards

Act.

The Family Court held that the Petitioner – wife was

an American citizen. She had an American Passport, with

an OCI Card. The minor girl – Ishnoor was also holding an

American passport. On account of the Petitioner –  wife

having  prolonged  her stay in India, the  passport of the

daughter expired in  October 2017,  which  has  not been

renewed ever since.  Insofar as the son is concerned, the

Petitioner ­ wife had not obtained the U.S. Passport even

though he was an American citizen by birth. Both children

had no valid documents for their stay in India. Since the

children were residing  in India  in  breach of immigration

laws, they  would  not fall  within the  ambit  of ‘ordinarily

residing’ in India as provided by Section 9 of the Guardians

and Wards Act.

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On the issue of custody, the Family Court held that

the paramount interest of the children would lie in shared

parenting by the parties in the U.S., and that the Petitioner

– wife was not entitled to the sole custody of the children.  

With respect to jurisdiction, the  Family  Court  held

that the Indian Courts would lack jurisdiction to entertain

the Guardianship Petition.

Aggrieved, the Petitioner – wife filed MAT. Appeal (FC)

No. 244 of 2018 before the Delhi High Court to assail the

Order dated 20.08.2018 passed by the Family Court. The

High Court by the impugned Judgment and Order dated

01.07.2019 dismissed the appeal.

The High  Court held that the Hindu  Minority and

Guardianship Act, 1956 does not override the Guardians

and Wards Act, 1890 which is supplemental to the latter.

S. 9 of the Guardians and Wards Act, 1890 provides that

the Court where the child  ‘ordinarily resides’ would have

jurisdiction to decide the issues of guardianship and

custody.

The High Court noted that the Petitioner – wife had

purchased properties in the U.S., and had applied for U.S.

citizenship in 2012, which was granted to her in 2013, and

was not surrendered to date. These facts reflect that the

Petitioner – wife did not intend to make India her

permanent home.  

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The conduct of the parties revealed that they had

abandoned their domicile of origin in India, and therefore,

could not be said to be ‘ordinarily residing’ in India. As a

consequence, the courts in Delhi would have no

jurisdiction to entertain the Petition u/S. 9 of the

Guardians and Wards Act, 1890.

The Court held that it would not be difficult for the

minor girl – Ishnoor to get accustomed to the life and

environment of  America,  since she was 7 years old,  and

had spent the initial 4 years of her life in the U.S. Once she

starts going to school  in the U.S.,  she would acclimatize

herself to that country. The minor son – Paramvir being a

little over two years old would be in a position to adapt to

the lifestyle and customs of the US.

The High Court held that this was not a case where

the children had grown up and rooted themselves in India.

The welfare of the children would lie in joint parenting by

both parents in the U.S., which was not possible if the wife

retained the sole custody of the children in India. The wife

could therefore not be granted permanent and sole custody

of the children.

The Judgment and Order dated 01.07.2019 passed by

the High Court dismissing the MAT. Appeal (FC) No. 244 of

2018 has been challenged by the Petitioner – wife before

this Court by way of SLP (C.) No. 20022/2019.  

5.Habeas Corpus Proceedings in India

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5.1 After dismissal of the first round of litigation pertaining to

the guardianship of the children, the Respondent –

husband filed Writ Petition (Crl.) No. 725 of 2017 before

the  Delhi  High Court for issuance of  a  Writ  of  Habeas

Corpus  to direct the Petitioner­wife to produce the minor

children i.e. Ishnoor and Paramvir before the Court, along

with their U.S. Passports. The Respondent – husband

further prayed that the High Court permit him to take the

minor children with him to the United States.

The High Court  vide  Judgment and Order dated

06.03.2018 allowed the  Habeas Corpus  Petition and

directed the Petitioner – wife to return to the U.S. along

with the two minor children within three weeks.  

It  was evident  from the conduct of the parties  that

they had abandoned their domicile of origin i.e. India, had

set up their matrimonial home in the U.S. and raised their

daughter in that environment. When the Petitioner – wife

decided not to return to the U.S. in January, 2016 she

acted in her self­interest, and not in the best interest of

her children.  

The High Court held that the children have the right

to be brought up by both parents as a family in the U.S. It

is in the best interest of the children that the Petitioner –

wife returns to the U.S.

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The High Court issued directions to the Respondent –

husband to ensure that once the Petitioner – wife returns

to the U.S., she is not faced with any adversity or hostility

by the Respondent – husband, or the American legal

system.

The High Court further directed the Respondent –

husband to move the  Superior Court, Judicial District

Stamford, Norwalk for re­call of Orders dated 17.11.2016

and 25.01.2017 wherein the Petitioner – wife was directed

to grant temporary physical and legal custody of the minor

children to the Respondent – husband. Furthermore,

when the Petitioner – wife lands in the U.S. with the two

minor children, they shall not be removed from her

custody.  The two minor children shall  continue to remain in

the custody of the Petitioner – wife even after she returns

to the U.S.,  till the competent court  in the U.S.  passes

fresh orders on the aspect of temporary/permanent

custody of the children, after granting adequate

opportunity of hearing to both parties. The Respondent –

husband would not make any attempt to take the minor

children  out of the custody of the  Petitioner –  wife  by

force. The Respondent – husband shall however be

entitled to meet the children and spend time with them as

may be mutually agreed between the parties.

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The Respondent – husband undertook not to initiate

any criminal/contempt proceedings against the wife in the

U.S.

The High Court directed the Respondent – husband to

file an Affidavit of Undertaking in terms of the conditions

mentioned in the Order dated 06.03.2018.  

5.2 In compliance with the Order dated 06.03.2018 passed by

the High Court, the Respondent – husband took the

following steps: ­

a) Submitted an Affidavit of Undertaking dated

20.03.2018 before the Delhi High Court to comply

with the directions stated hereinabove.  

b) The Respondent obtained an Order dated

14.05.2018 from  the  Superior  Court of  Stamford,

the operative part of which is extracted hereinbelow:    

“1. The prior orders for sole physical and legal custody in favour of the Plaintiff shall be recalled.

2. The prior orders remain in place that Jasmeet Kaur is to return immediately to Connecticut with the minor children.

3. The minor children shall remain in the custody of Jasmeet Kaur, and the Plaintiff shall have reasonable interim visitation with the minor children as agreed or Court ordered upon the minor children’s return with Jasmeet Kaur to Connecticut, until further custody orders are determined by the Connecticut Superior Court after

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granting adequate opportunity of  hearing to  both the parties.

4. That the Affidavit of Undertaking of the Plaintiff, confirming  how he has confirmed his  conduct to the Order of the High Court of Delhi at New Delhi on March, 6, 2018, submitted as Exhibit B to the Motion for Order (Tab  2 of  Exhibit 2) is  hereby approved and so ordered.

That Attorney William Taylor is hereby appointed as escrow agent pursuant to Exhibit C to the Motion for Order (Tab 3 of Exhibit 2).”

c) The Respondent deposited an amount of USD

25,000 in an Escrow Account to ensure compliance

with the payment terms. This account would be

operated in accordance with the directions and

Orders of the US Supreme Court at Stamford,

Connecticut, USA where the matter between the

parties was pending.  

5.3 The High Court vide Order dated 21.05.2018 directed the

Petitioner – wife to return to the U.S. along with both the

children within 3 weeks, failing which, the children would

be handed over to the Respondent – husband along with

their respective Passports.

5.4 The Petitioner – wife challenged the Orders dated

06.03.2018 and 21.05.2018 passed in the Habeas Corpus

Petition before this Court by way of SLP (Crl.)  No.4858­

59/2018.

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6.We have heard Ms. Malvika Rajkotia, Ld. Counsel appearing for

the Petitioner – wife, and Mr. Anil Malhotra, Ld. Counsel

appearing for the Respondent – husband.

6.1 During the course  of arguments  before this  Court, the

Petitioner – wife agreed to return to the U.S with the minor

children.

In these circumstances, we are not touching upon the

issue of jurisdiction.

7. We posted the matter for hearing in Chambers on

10.12.2019, when both parties alongwith the minor children

appeared before us. The Petitioner and Respondent perused

the directions which are being issued by this Order, and

agreed to the same.  

We direct that both the present Special Leave Petitions be

disposed of with the following directions :­

i. The parties will jointly apply to the U.S. Embassy for

renewal of the U.S. Passport of their daughter – Ishnoor,

and for issuance of an American passport for their son –

Paramvir.

ii. The Petitioner – wife along with the two minor children­

Ishnoor and Paramvir will return to Norwalk, Connecticut,

USA within a period of two weeks from the issuance of the

Passports of the minor children.

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If the Petitioner fails to comply with the aforesaid

direction, the children will be handed over to the

Respondent – husband who will take  them back to the

U.S.

iii. The Respondent – husband offered that upon returning to

the U.S., the Petitioner – wife may return to the

matrimonial home at Norwalk, Connecticut.

If the Petitioner – wife however chooses to live

independently, the Respondent – husband will provide

suitable accommodation to the Petitioner – wife in

Norwalk, Connecticut, with all basic amenities.  

In the alternative, the Petitioner – wife may identify a

suitable accommodation, in the vicinity of Norwalk,

Connecticut, so that the Respondent – husband has

access to the children.  

iv. The Petitioner – wife undertakes to provide visitation and

unsupervised access to the Respondent – husband every

weekend, which arrangement may be modified by a Court

of competent jurisdiction in the U.S.  

v. The Respondent – husband offered that upon returning to

the U.S., the Petitioner – wife may continue to practice

dentistry at their joint clinic viz. South End Dental Clinic

at Stamford.  

If the Petitioner – wife is not interested to jointly

practice with the Respondent – husband at  their  clinic,

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the parties may take steps to divide the assets equally.

The division of assets shall be completed within a period

of 4 months.

vi. The Respondent – husband will take steps to get the

children admitted to a reputed school in the vicinity.

vii. The  Respondent  –  husband  has  agreed to  provide the

following expenses to the Petitioner – wife:

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1.  $ 2000 approx.  towards rent

2. $ 1000 towards food/clothing/other needs

3. $1000 towards child care/nanny

4. $200 towards car expenses

5. $100 towards fuel expenses

6. $454.85 towards health insurance of the wife

7. $281.07 towards health insurance of the minor daughter –  Ishnoor

8. $281.07 towards health insurance of the minor son – Paramvir

9. $899 towards pre­school fees of  Ishnoor

10. $1500 towards legal expenses

That even though the aforesaid amounts work out to

approximately, US $ 7,715, we direct that the amount be

rounded off to US $ 8,000 per month to the Petitioner –

wife to meet all her expenses.  

The payment of these expenses would be made for a

maximum period of 12 months, or until the Petitioner –

wife gets employed in the U.S. and obtains division of their

assets, whichever is earlier.

The amount deposited in the Escrow Account by the

Respondent – husband as a security to ensure compliance

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of the payment terms will continue during this period. The

Escrow Account shall be operated as per Orders passed by

a competent Court in the U.S.  

viii. After the assets are divided, both parties will share equally

the expenses towards the education and upbringing of the

children.  

ix. We were informed that the Petitioner – wife has instituted

Divorce  proceedings  against the  Respondent  –  husband

before the Family Court, Tis Hazari, New Delhi. The

Petitioner – wife has agreed to withdraw the divorce

proceedings within a period of two weeks from this Order.

The Special Leave Petitions stand disposed of in the above­

mentioned terms.

…..……...........................J. (UDAY UMESH LALIT)

..….……..........................J. (INDU MALHOTRA)

New Delhi December 12, 2019.

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