- (1.) Immediately on conclusion of the hearing of arguments in the above Writ Petition on June 11, 1986, having regard to the urgency of the matter, we passed the following order :- "We allow the Writ Petition and direct that the minor boy, Dustan be restored forthwith to the custody of the petitioner i.e. the mother with liberty to the petitioner to take him to the United States. The child will be a ward of the concerned Court in Michigan and it will be open to the father, first respondent herein to move that Court for a review of the custody of the child, if he is so advised. Detailed reasons will follow. The passport of the child which is in deposit with the Registrar of this Court will be returned to the petitioner i.e. the mother of the child today itself. The concerned authorities of the Govt. of India will afford all facilities to the mother to take the child back to the United States pursuant to the order passed by this Court." We now proced to state in this judgment our reasons in support of the order.
(2.) The petitioner, Mrs. Elizabeth Dinshaw is a citizen of the United States of America residing in the State of Michigan. She is employed as a caseworker for the State of Michigan in Genesee County Department of Social Services, Flint Michigan. The first respondent, Mr. Arvand M. Dinshaw, who is an Indian citizen was a student at Northern Michigan University in 1971. During that period the petitioner was also stydying there. What started as a friendship between them on the campus later developed into love and the petitioner was married to the first respondent in a civil marriage before a legal magistrate in Negaunee, Michigan on February 26, 1972. The first respondent thereafter settled down in the United States more or less on a permanent basis having secured employment as an Accountant for the Controller's Office in Genesee County and having obtained a permanent immigration Visa. A male child, Dustan, was born to the couple on August 30, 1978 in Rochester, Michigan, United States of America where they were having their marital home.
(3.) Unfortunately differences arose between the two spouses late in the year 1980 and on December 23, 1980, the petitioner along with her son took up separate residence in a women's shelter in Saginaw, Michigan. She filed a petition for divorce on January 2, 1981 in the Circuit Court for the County of Saginaw, Michigan. By a decree dated April 23, 1982, the Circuit Court held that it had been established that there had been a breakdown in the marriage relationship to the extent that the objects of matrimony had been destroyed and there remained no reasonable likelihood that the marriage could be preserved and hence it declared the marriage as dissolved and granted a divorce to the petitioner as prayed for. By the same decree, it was directed that the petitioner shall have the care, custody and control of the minor child of the parties until he reaches the age of 18 years or until the further orders of that Court. The first respondent, the father was given visitation rights by the decree and it was provided that he shall have visitation with the minor child from approximately 5 p.m. to 8 p.m. on the Wednesday of every week during which he does not have a weekend visitation. It was further ordered that the father shall have visitation with the minor child on alternate weekends from 6 p.m. on Friday until the following Monday morning when he should return the child to his day care centre. On the subject of travel with the minor child to any place outside the United States, it was specifically directed in the decree as follows :- "It is further ordered and adjudged that should the Defendant Arvand M. Dinshaw, wish to travel with the minor child outside the territorial limits of the Untied States, he shall bring a petition before this Court, setting forth the conditions under which he intends to leave the country with the minor child. The court shall then make a determination as to whether such travel is in the best interests of the minor child, and what conditions shall be set forth to ensure the child's return.";