Holding

The Supreme Court held that the child's welfare necessitates custody with the mother, the English court had jurisdiction, and the statutory presumption of the father as natural guardian is displaced by these considerations.

Summary

Surinder Kaur Sandhu and Harbax Singh Sandhu, both Indian citizens, married in 1975 and moved to England where their son Pritpal Singh was born in 1976, making him a British citizen. After the husband was convicted for attempting to murder his wife and later removed the child to India in 1983, the wife obtained a ward of court order in England granting her custody. She filed petitions in Indian courts for custody, but the magistrate and High Court dismissed her claims, relying on Section 6 of the Hindu Minority and Guardianship Act, 1956, which names the father as natural guardian. The Supreme Court allowed the appeal, holding that the welfare of the child outweighs the statutory presumption, that the English court had jurisdiction due to the parents' matrimonial home and the child's citizenship, and that the father’s conduct rendered him unfit. Consequently, custody was ordered to be handed over to the mother, and costs were awarded.

Issues considered

Whether Section 6 of the Hindu Minority and Guardianship Act, 1956, which designates the father as natural guardian, can be overridden by considerations of the child's welfare and a foreign court order.
Which jurisdiction—Indian or English—has the authority to decide custody of a child who is a British citizen born in England to Indian parents, especially after the child was removed to India.
Whether the English court's order granting custody to the mother is enforceable in India under conflict of laws principles.

Legislation cited

Code of Criminal Procedures. 97
Hindu Minority and Guardianship Act, 1956s. 6
Supreme Court Act, 1981s. 41

Subjects

child custodyconflict of lawsjurisdictionwelfare of childHindu Minority and Guardianship ActBritish citizeninternational child abductionenforcement of foreign court orders

Judgment

- 422

'
,A SMT. SURINDAll KAUR SANDHU
v.
HARBAX SINGH SANDHU & ANR.
April II, 1984
8 [V.V. Cl!ANDRACHUD, C.J, AND SABYASACl!I MUKHARJf, J,j ·
Hindu MlnoTity ·ancl Guardiahshtp Act, J9S6·1Vec•iOn 6-Interpretalion
of-Custody of the· child. Conflict of Laws'-Jurisdlction 'Of the ·court to decid~
the questloa of custody of o minOr. child-who is a ,British citizen while the
parents are Indian . citizens.

Appellant and Respondent No. I wore married io 1975 at Bodni
Kalan District Paridkot, Punjab according•to Sikh rites. Soon after the
marriage, they left for England, where a boy na~ed Pritpal Singh wa.s born
to them on October 24,. 1976. Soon thr:rep.fter, their relationship came
under a strain with the. reSult Respondent 1 'was trYing to negotiate w·itb
·• hitman to have tho appellant run over by a· oar. The Berkshire Police
got.-=ent o(it rCsultiog in the Responderit's conviction and'Sentence for a
D period of three years. Ironically· the' appellant. wife interovcncd and
succeeded 1u obtaining a probation order for the man who-ha~ att~n;iptcd
to procure her murder; The husband was released on probation on
February 4, 1982. The period of probation expired on December 24,
198i. On January 31, 1983, while the wife.was away at wor~, Respon· ·
dent No. 1 removed tho boy from England and brought him to India. On
the same date, the appeUant~Wife obtaind an order under section 41 of
tho Supreme Court Act, 1981 under which the boy became the ward of
the Court with effect from that date. This order was codfirmed · on July
22, 1983.

In tho ·meantime ·the appellant came to India in April, 198.3 and on
5.5.1983 filod·a petition under section 97 of the. _Code of Criminal
Procedure -in the Court of the learn_cd Judicial Magistrate first .class
Jagraon praying for° tho custody o(, the child. The Respondent No.. l

.
contested and took an objection .that under section 6 of' the Hinda
Minority and Guardianship Act, 1956 . he was the natural guardi_an .of the·
minor.boy. The- contention was accepted and the- petition· was dismissed.
.

The_appellant went back to England to resume her work and obtained
0 the confirmation order dated 22.7.1983 referred to afove. Armed with
the said order sh$' returned to Iodf8 and filed a writ Petition in the- High_
Court of Punjab and Haryana. The Wrif Petition· was dismissed on the
grounds inter a/ia that her status in England fs that of a foreigner, factory
worker and a wife.Jiving separately from ~e husband and h1ving no:
relatives and as such the ohiid would have to live in lonely and dismal
II 5UrroUtldiogs in .England~ while it WOUid grOw· in an atmosphere _Of seJf
confidence and seff respect, if it was permi\teq tq Uve with its fa(her a~q
"and p~reg tu,
•
s. K. SANDHU v. H. s. SANDH{J•(Chandrachud, c J.) 423
Hence the appeal arter ohtainiog special leave of the Court. A
Allowing the appeal, the Court,
HELD : I. Section 6 of the Hindu Minority and' Guardianship Act,
1956 onstitutes the father as the natural gllardian of a mi'nor son. But
that povision cannot ~upersede the paramOunt co_nsideration as to what
• is conducive to tho welfare of the minor. As the rnatters are· presented to
the Court the boy, from bis. own point of view, ought -to be in the B
custo~y of the mother. [427A·B]

2: 1 The modern theory of conflict of laws recognises 3nd, in any
event, prefers the jurisdiction of the State whiCh has the most intimate
contact with tho issues ari.sing in the case. Juris~ictian is not attraCtcd
bY the operation or' creation of fortUitous circumstances such as the
circumstance as to whC:rc the child, whose custody is in 'issue,. is brought C
or for the time being lodged. To allow the assumption of iurisdiclion by
another State in such circumstances will only result in encouraging
forum·shopping. Ordinarily, jurisdiction must follow upon funCtional
lines. That is to say, foi example, that in matters relating to matri~ony
and custody, the law of that place must govern which has the closest •
concern with the welJ.·beine· of the spouses and the welfare of the offs-
prings of marriage· ·rhe spouses in this case had made BDgtand their D
home where this boy was QOrn to them. The_ father cannot deprive the
English. Court of 'its jurisdiction to decide upon bis custody by ,removing
him .to India, not in the normal movement. of the m~trimonial home
but, by an act which was gravely detrimental to the place of that home.
The fact that the. matrimonial home of the spouses was in England,
establishes sufficient contacts or ties with that Sta tc in order to make it.
reasonable" and just for. tho Courts of that $tate to assume jurisdiction to · E
enforce obligations which were.incurred therein by the spouses. [427-CG)

2:2 The spouses had set up their matrimonial home in England
.where the wife was working as a clerk and the husband as a bus driver.
The boy is a British citizen,. having been born in Bngfand, and he holds
a British passport. It cannot be controverted that, in these cjrcumstances
the England Court had jurisdiction to decide the question of his custody. p
' [427B-C]
International Shoe Company V. Stale of Was.hington, 90 L.ED 95.
[1945] quoted with approual.
3;1 Jo the· instance case; (i) The welfare of the boy does not
require that he should live with his . father or with the· grand parents;
(ii) the "traumatic experience of~ cqoviction on a criminal chargo'' is
not a factor in favour of the father especially when his conduci following G
jmmediately upon his release on probation shows that the experience has
not chastened him, and (iii) The father is a man without a character
who offered s9Iicitation to the commis&ion of his wife.,s murdCr. The
wife, obtained an order of probation for him but, ho abused he'r magna-
nimity .by rtinniiig away with the boy soon after the probationary period
was over. Even i~ that act., he displayed a· singular lack of respect for
law ~y obtaining a duplicate passport for the boy on an untrue represen- H
:tation that the original passport was lost. The Original passport was, to
his knowledge, in the keeping of his wlfo. Iii Ibis background, tho
424 SUPRaMB COURT lulPORTS [1984] 3 s.C.it.

A affliJ.ence of tbC husband's parents cannot be reg:irded as a circumstance
of such overwhelming imporianCe as to tilt the balance in favour of the
father on the question· of what is l:ruely, ..for the \velfare of thC niinor. At
any rate it .will not be les:i for the welfare of the minor if the lived with
his mother. He was whi3kt;d away from her and it cannot be said that
there are any circumHances to support the view that lbe new environment
in which he is wrongruliy· br"ought is more conducive to his welfare. He •
B js··about _8 years of age and th·J loving care of the mother ought not to be
denied to him. The father is made of coarse stuff. The mother earns an.
income. of £ioo a week, which is certainly not 13.rge by English standards,
but is not so low as not to e:iablo her to- take reasonable . care of the
boy. [426E•H}

3:2 It is the duty and functioff of the court to protect the wife
C against the bur<ten cf litigating in an inconvenient foru;n which-she and her
husba.nd bad left volunt<irily in orde'r to make their living in England,
where they gave birth .to this unfortunate boy. [427H]

(The court directed the custody of the child to the mother forthwith
and awarded c.ost of Rs. 3000) [428B] Y
D CRIMINAL APPELLATE JvRISDICTION : Criminal Appeal No.
183 of 1984.

Appeal by Special leave from the Judgment and Order dated
the 26th August, 1983 of the Punjab and Haryana High Court
in Cr. Writ Petition No. 392 of 1983.
E
C. M. Nayar and Vijay Jhanji for the Appellant:

Puran. Chand, Mrs. Naresh Bakshi and Miss Kailash Mehta
for the Respondents.
F The Judgment of the Court was delivered by

CHANDRACHUD C. J., : The appellant, Surinder Kaur Sandhu,
is the wife of respondent l; Harbax Singh Sandhu. Respondent 2
is the father of respondent l. , Appellant and respondent I were
married in 1975 at Bodni Kalan,. District Faridkot, Punjab, accor-
G ding to Sikh rites. Soon after the m11_rriage they left for . England,
where a boy named Pritpal Singh was born to them on October
24, 1976.
Within a short period after the bitth of the boy, the· relation-
ship lietween the spouses came under a strain resulting in 'a serious
episode. The husband was trapped by the Berkshire Police who
H got the scent that he was negotiating with a hitman to have the
wife
.
run over by a car.,
- The husband was.convicted
.
and
.
sentenced

t
s. R;. SANDHU v. H. s. SANDHU (Chandrachud, c. J.) 42;

to a term of three years for that offence. Ironically, it was the A
·wife who intervened and succeeded in obtaining a pr-0bation order
for the man who had attempted to procure her murder. The
husband was released on. probation on· February 4, 1982. The
period of probation expired on December 24, 1982.
. •· ' On January 31, I'l83, while the wife was away .at work, the B
husband remove<) the boy from England and brought him to India.
On the same date, the wife obtained an.order under section 41 of
of the Supreme Court ·Act, · 1981 under which the boy became
the Ward of the Court with effect from that date. That order
was confirmed on July 22, 1983 by Mrs. Justice Boo\h of the
High Court of Justice (Family Division). By the said order, the c
husband was directed to haud over the custody of the ininor boy
to the wife or her agent forthwith.

The wife came to-India ii} April 1983. On May 5, 1983 she
filed a petition under section 97 oHhe Code of Criminal Procedure.
in the Court of the learned Judicial Magistrate, First Class, D
Jagraon. She asked for the custody of her son, contending t)lat
he was in the illegal custody of the respondents. Section 97
authorises the Magistrate to direct a search to be made for persons
wrongfully lonfined and, on ·their being found, to be produced
_in the Court in order to facilitate the passing of Stich order as the
circumstances of the case may .require. The respondents relied. E
upon section 6 of the Hindu Minority ·and Guardianship Act,
1956, and opposed the petition on the ground that Respondent I
. was the natural guardian of the minor boy. Accepting that con-
tention, the learned Magistrate dismissed the petition; leaving the
question of the custody of the child to be decided in an. appro- F
priate proceeding. ,
The wife·then went back to England to resume her work and
obtained the order dated July 22, 1983 to which we have already
referred. She came back to India once again, this time armed
with _the aforesaid order of the English High Court. She then filed
tb.e present writ petition in the High Court of Punjab and Haryana, G. ~
asking for the production and custody of her minor son.
The learned single iudge of the High Court who dealt with
· th.e petition JUlide an excellent effort to bring about a rapproache-
ment between the spouses but, ,he did not succeed. He questioned
the boy more than once and he even presi1aded the spouses to live •
together for a couple of days in· the· house 'or the lnspector General H
of Prisons;Haryana. · The spouses reported back to him that they
•
• I

' 426 SUPREME COURT REPORTS , ,'(i984) 3 s,.C.R.
·A were unable to resolve their differences.

The iearn_ed Judge dismissed the wife's' petition on the
· grounds, inter alia·, that her st~tus in England is that of a foreigner,
a factory worker and a wife living separately from the' husband:
that she had no relatives in England; and that, the child would
B
have to live in lonely and dismal surroundings in England. On •
t]\e other hand, according to the learned. Judge, the father had gone
through a traumatic experi,ence of a conviccion on a criminal
charge; that he was back home i.n an atmosphere which welcomed
him; that his parents were in affluent circumstances; and that, tpe
c child would grow iu an atmosphere of self-confidence and self·
respect if he was permitted to live with them.

Some of these circumstances mentioned by the learned Judge ·
are not beside the point but, their comparative assessment is diffi·
cult to accept as made,. For example, the 'traumatic expei;ience
D of a conviction on a criminal charge' i~ riot a factor in favour of
the father, especially when his conduct following immediately upon
his release on probation shows that the experience has 11ot chas· •
tened him. On the ·whole, 'we are unable to agree that the welfare
of the boy requires that he should live with his father or with· llie
grand-parents. The father is a man without a charscter who
E offered solicitation to the commission of his wife's murder. The
wife obtained an order of probation for him but, he abused her
magnanimity by running away with the boy soon· after the pro-
·, bationary period was over. Even in that act, he displayed a
singular la.ck of respect for Jaw by obtaining a duplicate passport
for the boy on an untrue representation that the original passport
.. F was lost. The original passport was, to his knowledge, in the
keeping; of his wife. In this background, we do not. regard the
aJlluence of the husband's par,nts to be 'a circumstance· of such
overwhelming importance as t,0 tilt the balance in favour of the
father on the question of what is truly for the welfare of the
minor. At any rate,· we are unable to agree that it will be less
G for the welfare of the minor if he lived with his mother. He was
whisked· away .froni ii.er and the question is whether, .there are any
circun,stances to support the· view that -the new environment' in
which he is wrongfully brought is niore conducive. fo his welfare.
He is about .8 years of age and the lovirig care of the mother ought
not to be denied to him. The father is made of coarse stulf. The
• H mother earns an income of £100 a week, whicl:i is certainly not
· large_by English standards, but is not so low as uot to· enable her,
'
•
s: K..SANDHu v. it. s. S/\,NDHU (Chandrachud, c. J.)
to take reasonable care of the boy. A
. Section 6 of the Hindu Minority and Guardia!Jship A~t. 1956
.-constitutes .the father as the natural guardian of a minor son. But
that provision cannot supersede the pai:amount consideration as to
what is conducive to tho welfare of the minor. As the matters are
, .. presented' to us to-day, the. boy, from his own point. of view,
ought to be in the custody of the mother. B
We may· add !hat the spouses had set up their matrimonial
home in England where the wife was·working as a clerk and the
., husband as a bus driver. The boy is a British citizen, having .been
borr in: England, and he holds a British passport. It cannot" be
controverted that, in these circumstances, the English Court had
jurisdiction t.o decide the question of his custody. The modern
c
theory of Conflict otLaws recognises and; in any .event, prefers
the jurisdiction of the State which has the most intimate contact
v.ith the issues arising iµ the .case. Jurisdiction is not attracted by
the operation or creation of fortuitous circumstances such as the
circumstance as to where the child, whose custody is in issue, is D
brought or for the time being lodged. ·To allow the assumption Of
jurisdiction by another State ,ir, such circumstances will only remit
in encouraging t'orum-shopping. Ordinarily, jurisdiction must follow
upon functional lines. That is to say, for example, that. in matters
relating to matrimony and custody, the law of that place ·must
govern which has the closest concern with the well-being of the E
spouses and the welfare of the otfsprings of marriage. The spouses
in this case had made Engjnd their .home where this boy was ·
born to them: The father cannot deprive the English Court of its
jurisdiction to decide upon his custody by removing him to India,
not in the. normal m9vement of the matrimonial )lome but,
by an act which was gravely detrimental to the peace .of that F
home. The fact that the matrimonial home of the spouses
was m England, establishes sufficient contacts or1ies with that
·'State in order to make it reasonable and jnst for the Courts of •
that state to ·assume jurisdiction to enforce obligations which were
incurred therein by the spouses.,. (See lntejnational Shoe Company
v. State of Washington, (l) which was not a matrimouial case but G
which is regarded as the fountainhead of the subsequent develop·
me~ts ofjurisdictional issues like the one involved in the instant
case.) It is our duty and function to protect the wife against the
burden of litigating in an -inconvenient forum which she and her
husband had left voluntarily in order to make their· 1iv1ng in
. -) England, where they gave birth to this unfortunate boy . .H
(I) 90 L. Ed. 95 [1945]

•
SUPREME COURT REPORTS • ii984j 3 s.c.l\.
•
For these reasons, we set asid; the judgment of the High
Court and direct that the custody of the child shall be handed over
to the appellant-mother. lhat shall he done during the course
of fuis day. ,

The High Court has referred to the evidence showing that the
.B · ·annual income of the father's family is in the range of Rs. 90,000.
That would justify an order directiug the respondents to pay a
sum· of Rs. 3,000 (three thousand) to the appellant for her costs
of this appeal.

Order accordingly,
c
S. R. Appeal allowed.

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