Moot Problem 19
Indumati Saxena (Appellant)
vs
Ramanuj Saxena (Respondent)
The Respondent, Shri. Ramanuj Saxena met Indumati in California, USA
in the year 1993. They got engaged on 17th March, 1994 in Chicago at the
residence of Shri. Bharat Kunj, uncle of Indumati. They got married on 19th
July, 1994 at Mumbai as Indumati's parents resided in Mumbai. Ramanuj’s
parents and relatives flew from Delhi to Mumbai by air for the marriage. The
airline bookings were done by Indumati's parents. During the marriage
ceremony which extended for more than a week, Ramanuj, his parents and
relatives resided in a posh hotel booked by Indumati's parents. All the marriage
expenditures were borne by Indumati's parents. After marriage both the parties
went back to California and since then resided in California. Ramanuj worked
with a multinational company in California and joined office immediately as he
had no sanctioned leave beyond a week. Indumati Saxena also joined one of the
hospitals as she was a trained nurse.
Indumati Saxena found her husband's behavior very strange after
marriage. He did not share any household responsibility and very often came
home late. One of her friend informed her that she had seen her husband several
times with one of his female colleague at Sosho Club and both of them seemed
to enjoy each other's company.
A child, Master Sid was born from this wedlock on 26' May, 1996. The
couple was happy and Ramanuj threw a grand party for their friends when the
child was born. With the child, Indumati had additional responsibilities. She
was compelled to leave her job because of the circumstances. With this loss of
income, Ramanuj got very upset and very often abused her verbally and
physically. He accused her for leaving the job as she was not willing and
capable of handling responsibilities like other Indian women in US.
At one such incidence when his friend had come to visit them he got
aggressive and physically assaulted Indumati in front of his friend. Indumati
requested the visitor friend not to register any complaint with the US authorities
as she wanted her marriage to work. The Respondent preferred to educate his
child Master Sid in a reputed school and accordingly got his child admitted in a
school which was not very close to their residence. The couple had heated
arguments on this and both of them were not on talking terms for more than a
month. All the school expenses were borne by the Respondent. Master Sid
enjoyed his school very much and had number of friends. On few weekends he
visited his friend's house and occasionally invited them to stay with them. The
Appellant however did not approve of this as she had to cook and take care of
them also.
Indumati went into depression and was advised by the doctor for
counseling sessions by the psychologist; however she discontinued them after
three to four sessions. In 2003, the parties applied for US citizenship and
became US citizens. Master Sid is US citizen by birth.
In March 2004. the couple visited India along with their son. The
Appellant stayed back in Mumbai with her parents while the Respondent went
back to USA. Master Sid got admission in one of the reputed schools and
continued his schooling. Indumati send an e-mail to Ramanuj as placed on
record-
“Sid has got admission and is happy in the school, his fee has been paid
by my parents, I want some cooling period for both of us to understand our
responsibilities and to live together peacefully."
Shri. Ramanuj responded to the mail as placed on record-
“I am more than happy and willing to return to your parents the school
fee and other expenses for both of u and on Wednesday I will be transferring the
money to their account Take good care of Sid and he should not suffer because
of our differences and your decision to stay back in India.”
There were several emails exchanged between the parties which mainly
related to schooling and selling of car of Indumati in US and transfer of savings
of Indumati in India.
In April 2007, the Appellant informed the Respondent about a petition
under the Guardian and Wards Act being ready for presentation before the court
in Mumbai. It is alleged by the Appellant that after this the Respondent started
threatening her on phone and asked them to return to US otherwise he would
remove the custody of Sid through his parents.
Shortly after the presentation of the main petition, an application under
Sec 12 of the Guardian and Wards Act read with Sec 151 of the Civil Procedure
Code was filed by the Appellant praying for an ex-parte interim order
restraining the Respondent and/or anyone on his behalf taking away minor from
her custody and appointing her as the sole guardian till further orders.
Meanwhile the Respondent filed a case against the Appellant in
California Court for the custody of the child. The superior court of California
passed an order in favor of Ramanuj Saxena and the sole custody was given to
him. The court passed such an order observing that father is the natural guardian
of the child and as he is earning well he can take better care of his son, besides
this the court observed that master Sid has roots in US and has friends there. It
is for the betterment of the child that he remains in the custody of father in US.
The mother at the time of application is not earning, psychologically disturbed
and she has stayed back in India against the wish of her husband. The order of
the court was communicated to the Appellant through mail as she avoided
personal service.
The court in India passed an order granting custody of Sid to mother and
dismissing the application of the Respondent for not entertaining the
guardianship petition filed by Indumati on the ground of territorial jurisdiction.
The Court observed that the Respondent is unable to take care of the child as he
is alleged to be an alcoholic and has short temperament; he has been abusing the
applicant physically and mentally.
Shri. Ramanuj Saxena through his advocates filed a petition in the
Mumbai High Court against the order passed by the District Court. The High
Court passed an order that the District Judge has exceeded his jurisdiction while
entertaining the application made by Indumati for custody of child and
appointment of guardian. The order passed by the District Judge was set aside
and it was held that the courts in Mumbai have no Jurisdiction to entertain
Guardianship petition as all the parties are US citizens and courts in California
has given decision in favor of the father.
Aggrieved by the decision of the High Court, Indumati Saxena filed an
appeal in the Supreme Court on the following grounds:
1. That the Mumbai High Court has erred by refusing to exercise
extraordinary jurisdiction under Sec 151 of the Civil Procedure Court on the
sole ground of the "principle of comity of court".
2. The District Court does have jurisdiction under Sec 9 of the Guardian
and Wards Act, as Sid is ordinarily resident" of India as at the time of filing
petition as he was residing in India for the last three years.
3. The sole custody of the child can be granted to mother taking into
account the facts and situations and visiting rights may not be granted to father
if it is not in the welfare and well-being of the child.
