CASES OF INTEREST click here to go back to the Cases of Interest         Supreme Court of India : Guardians and Wards Act, 1890   ISSUE: Child Custody/ Jurisdiction/ Civil Procedure Code, 1908 - Section 9 -Section 11; Criminal Procedure Code, 1973 - Section 97   ISSUE: Constitution of India, Article 226 - Guardian and Wards Act, Sections 7, 9, 12 - Custody of minor children - Habeas Corpus petition by husband claiming custody of children -     ISSUE: Child Custody/ Jurisdiction/ Civil Procedure Code, 1908 - Section 9 -Section 11; Criminal Procedure Code, 1973 - Section 97 Carla Gannon and Anr. vs. Shabaz Farukh Allarakhia and Anr. - Criminal Writ Petition No. 509 of 2009 Q. Does an Indian Family court have jurisdiction subsequent to a foreign custody consent judgment by a competent court? A. Yes. The foremost consideration is the welfare of the child and the court will conduct its own inquiry. Mother obtained 2008 Australian Court order directing she be permitted to return with Australian citizen child to Australia and resume custody. Father had brought child on holiday to India and moved the Mumbai Family Court for permanent custody. Since the father agreed to joint custody he was estopped from contending that the mother is not qualified as custodial parent . While ruling that the Mumbai court would decide on the issue uninfluenced by its observations and in accordance with law, the Supreme Court noted: (1) Although the father had brought child to India in violation of the Australian Court order, the foremost consideration is the welfare of the child and the court would conduct its own inquiry. (2) The child's best interests would be served by ordering custody to the father based on: (a)The father resided with his retired parents and aunt ensuring proper care. The mother resided with her parents and partner with whom she had three illegitimate children. (b) The maternal grandparents had filed for bankruptcy. (c) The mother was unemployed ( d) The partner had not filed any affidavit indicating willingness to care for the child (e) The Australian custody order was passed in terms of consent given by the parties, not on merits of the case. The bankruptcy and the illegitimate births were not before the Australian court (f) Pendente lite visitation in India was granted. The child was not to be removed from Mumbai without previous permission of the Mumbai Court. back to the top ISSUE: Constitution of India, Article 226 - Guardian and Wards Act, Sections 7, 9, 12 - Custody of minor children - Habeas Corpus petition by husband claiming custody of children Sarita Sharma - Appellant v Sushil Sharma - Respondent Criminal Appeal No. 337 of 1998 2000 SOL Case No. 093 Q. Will the Indian court order the return of a minor child under the Hague Convention? A. No. India is not a party to the Hague Convention. In deciding whether to order the return of a child who has been abducted from his or her country of habitual residence the court's overriding consideration must be the child's welfare. Wife appealed judgment and order of the High Court of Delhi in Writ Petition (Crl.) No. 656 of 1997, granting Husband's writ of Habeas Corpus in respect of two minor children , alleging Wife had illegal custody. Husband obtained a divorce in the US in 1997. Prior to the divorce judgment, wife travelled to India with the children without Husband's knowledge or a court order. The American court issued a warrant for her arrest. The decree passed by the American Court though a relevant factor, cannot override the consideration of welfare of the minor children. Ordinarily, a female child should be allowed to remain with the mother so that she can be properly looked after. It is also not desirable that two children are separated from each other. The High Court should have directed the respondent to initiate appropriate proceedings for a full and thorough inquiry. For the reasons stated above, we allow this appeal, set aside the judgment and order of the High Court and dismiss the writ petition filed by the respondent. Appeal allowed. back to the top