In the Court of the Guardian Judge, Delhi
Raj Malhotra
PETITIONER Versus
Shivani Malhotra RESPONDENT
Instructions to Counsel for Petitioner
The Petitioner is an Indian citizen, Punjabi by origin, and presently resident of New Delhi.
The Respondent is a British citizen, Gujarati by origin, and resident of London. The
Petitioner met the Respondent during their MBA course in London. They fell in love with
each other and their marriage was solemnised according to Hindu rites and ceremonies in
London on January 15, Yr…9. The parties were blessed with a son, Rohan, on March 26,
Yr…8 and a daughter, Muskaan, on April 2, Yr...6.
Differences had arisen between the parties right from the beginning of the marriage,
primarily due to incompatibility. The friction between the parties grew, particularly after the
birth of the two children. Fed up with frequent arguments and fights at home, the parties got
their marriage dissolved by a decree of divorce on January 10, Yr…2. It had been agreed
between the parties that the minor children would remain in the custody of the Respondent,
with the Petitioner having temporary custody of the children on the weekends from 10 am on
Saturday to 8 pm on Sunday. The decree of divorce had been passed in terms of the said
agreement. The decree further directed that the party seeking to take the children out of
United Kingdom would have to apply for such permission from the London Court, which
might grant the same on such terms so as to ensure the return of the children. The parties
were directed to contribute equally for the maintenance and education of the children.
The Petitioner states that on January 3 Yr…0, his 65 year old father in New Delhi fell
seriously ill and was hospitalised. Around the same time, he learnt that the Respondent had
started a live-in relationship with a divorcee, Ajay Khanna, and had, since the previous week,
taken the children to reside with her in Ajay Khanna’s house. The Petitioner decided that he
would leave London for good and return to New Delhi. He, however, did not want to leave
his children behind with the Respondent and her partner; particularly since he believed that it
would not be in their welfare, morally and emotionally, to witness their mother have a live-in
relationship with another man. The Petitioner knew perfectly well that the Respondent would
not give him the custody of the children either. So taking advantage of the weekend custody
of the children, the Petitioner took the flight from London to New Delhi on Saturday, January
10 Yr…0, along with the children. The Petitioner states that given the urgency of reaching
New Delhi to be with to his ailing father, he brought the children to New Delhi without
applying for permission to do so from the London Court.
The Petitioner has learnt that the Respondent had then moved the London Court
complaining of the violation of the Court’s decree by the Petitioner. The London Court has
even issued a warrant of arrest against the Petitioner on the ground of unlawful taking and
restraining the children outside United Kingdom. The warrant, however, has not been
executed as the Petitioner is in India. The Petitioner states that thereafter the Respondent
came to New Delhi and visited the parental home of the Petitioner on January 24 Yr…0,
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where the Petitioner let her meet the children for several hours. The Respondent demanded
that the children be returned to her. The Petitioner refused to do so.
Apprehensive the Respondent would take the children out of his custody, the
Petitioner has filed custody and guardianship proceedings before the Guardian Judge, Delhi,
under the Guardian and Wards Act 1890 pleading that he is the natural guardian of the
children and that the children are now in his custody, and within the jurisdiction of the Indian
Courts. He maintains that given the fact that the Respondent started a live-in relationship with
another man in London subsequent to the passing of the decree by the London Court, it is in
the welfare of the children that they should now remain in his custody. He offers that the
Respondent could meet the children whenever she visited New Delhi. The Petitioner
undertakes to provide for the maintenance and education of the children. In fact, the children
have already been admitted to a reputed school in New Delhi and have even made friends.
The Petitioner points out that his mother is a housewife and stays at home and is quite
competent to look after both the children. The Petitioner express his regret for having to
violate the consent decree of the London Court but contends that in such cases, the matter has
to be decided not on consideration of the legal rights of the parties but on the sole criteria of
what would best serve the interest and welfare of the minor children. The Petitioner prays that
it would be in the interest of the children if they are directed to remain in his custody and the
Respondent be restrained from taking the children out of his custody. The Petitioner has also
filed an interlocutory application under Section 12 of the Guardian and Wards Act 1890
seeking a restraint order forbidding the Respondent from removing the children from his
custody pending the disposal of the matter.
The Guardian Judge has granted ex-parte the interim restraint order against the
Respondent till further orders. Summons was sent to the Respondent two weeks ago for last
Friday, on which day the Respondent filed her Written Statement to the Petition and Reply to
the interlocutory application. The Petitioner had also been directed to produce the children
before the Court on that date, which he duly did. The statements of the children were
recorded by the Guardian Judge in Chambers on the same date. The matter is now listed
today for arguments on the interlocutory application of the Petitioner.
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In the Court of the Guardian Judge, Delhi
Raj Malhotra
PETITIONER
Versus
Shivani Malhotra
RESPONDENT
Instructions to counsel for Respondent
The Respondent has received last week summons from the Court of the Guardian Judge,
Delhi enclosing a copy of the application of the Petitioner seeking custody and guardianship
of the two minor children, Master Rohan and Baby Muskaan, and a copy of the interlocutory
application seeking a restraint order forbidding the Respondent from removing the children
from the custody of the Petitioner. The summons were accompanied by an order passed by
the Guardian Judge, granting such restraint order ex-parte till further orders. It was indicated
in the said order that the interlocutory application of the Petitioner would be taken up for
hearing on the coming Friday on which date the Petitioner also had been directed to produce
the children in Court.
The Respondent immediately filed her Written Statement and her Reply to the said
interlocutory application of the Petitioner under Section 12 of the Guardian and Wards Act,
1890.
The Respondent has pleaded in her Written Statement that as per the decree of
divorce of January 10, Yr…2 passed by the London Court, the minor children would remain
in her custody, with the Petitioner having temporary custody of the children on the weekends
from 10 am on Saturday to 8 pm on Sunday. The decree further directed that the party seeking
to take the children out of United Kingdom would have to apply for such permission from the
London Court, which might grant the same on such terms so as to ensure the return of the
children. The parties were directed to contribute equally for the maintenance and education of
the children.
The Respondent states that in terms of the said decree, the Petitioner duly returned
the children to the Respondent when he took them for weekend custody. The children had
gone to stay with the respondent on January 10 Yr…0 and were to be returned to her on
January 11 Yr…0 at 8 pm. When the children did not return, she frantically tried to contact
the Petitioner, only to learn from his neighbours that he had left for India with the children.
Accordingly on January 19 Yr…0, the Respondent applied to the London Court for the
warrant of arrest against the Petitioner on the ground of unlawful taking and restraining the
children outside United Kingdom. The said warrant still stands outstanding against the
Petitioner.
The Respondent pleads that like the Petitioner, she too is the natural guardian of the
children, and more important, she is the person entitled to their custody under the order of a
competent foreign Court, the certified copies of which she annexed to her Written Statement.
She contends that she has reason to believe that the Petitioner’s father was not unwell as
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stated by the Petitioner in his application and that he had cooked up the story about his
father’s illness merely to justify his sudden flight from London. She adds that the Petitioner
has shown scant respect for the decree of the London Court and that his conduct of abducting
the children does not inspire confidence that he is a fit and suitable person to be entrusted
with the custody and guardianship of the children. The Respondent states that the children
were born, brought up and educated in London and are still accustomed and acclimatized to
the place of their birth. The children were going to school in London and are presently losing
out on their studies on account of the reprehensible conduct of the Petitioner.
The Respondent admits that she is living with Ajay Khanna, but states that she
ensures that the children do not witness any inappropriate or embarrassing situations. She
points out that it does not necessarily outrage sensibilities in London for a divorcee to have a
partner, nor does she consider it to be morally depraved. Rather, Ajay Khanna is very fond of
the children and tries to give them fatherly love. Moreover, the minor daughter, Muskaan, is a
growing up girl and needs the constant attention of the Respondent. It would be cruel to
separate Rohan and Muskaan from each other at such tender age, more so, because they are
each other’s best friend.
The Respondent states that she has to report back to her job in London next week and
cannot stay in New Delhi to contest the custody and guardianship case filed by the Petitioner.
She further submits that if she is restrained from taking the children back to London, the
Petitioner would gain an advantage by his wrongdoing and that it would encourage the
tendency of sudden and unauthorised removal of children from one country to another. The
Respondent offers that should the Petitioner withdraw the instant matter and let her take the
children back to London, she would co-operate with the Petitioner for the withdrawal of the
warrants of arrest outstanding against the Petitioner and that she would raise no objection to
the restoration of his weekend custody rights which have since been terminated by the
London Court.
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In the Court of the Guardian Judge, Delhi
Raj Malhotra
PETITIONER
Versus
Shivani Malhotra
RESPONDENT
Statement of Master Rohan, son of Mr Raj Malhotra, aged about 8 years, recorded in
Chambers
Q. I am told that you have joined a new school
A. Yes
Q. Do you like your school?
A. Yes
Q. Don’t you find everything strange around you?
A. No. I like being here.
Q. Have you made any friends so far?
A. Yes. Akrit and Kashish.
Q. Who else is staying with you?
A. My Daddy’s parents and my sister.
Q. Do your grandparents look after you?
A. Yes. They are always around me.
Q. But is not your grandfather unwell?
A. No. He came to the airport to receive us.
Q. Does not your grandfather go to the doctor?
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A. No.
Q. Who gets you ready for school?
A. My grandmother.
Q. Who cooks your food?
A. My grandmother.
Q. Has your Daddy ever hit you?
A. No. He loves me a lot.
Q. Has your Mummy ever hit you?
A. Once, when I told a lie about having done my homework.
Q. What are your hobbies?
A. I play cricket. I do painting and swimming.
Q. Who plays cricket with you?
A. My Daddy. Ever since we came here, my grandfather also plays cricket with me.
Q. Do you know any one by the name of Ajay Khanna?
A. Yes, Ajay Uncle.
Q. Who is he?
A. He is Ajay Uncle. He is Mummy’s friend in London.
Q. Is Ajay Uncle nice to you?
A. Yes. He loves me a lot and gives me chocolates.
Q. Do you spend much time with your sister, Muskaan?
A. She is my best friend. We are always together.
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Q. Who do you love more- Mummy or Daddy?
A. Both.
Q. Choose one.
A. (silence)
Q. Your Mummy and Daddy are living separately?
A. Yes.
Q. Who do you want to stay with?
A. Both.
Q. No, if you have to choose one?
A. (silence)
Q. If you have to choose one?
A. Daddy always plays cricket with me. I miss that.
Note: The child is visibly distressed at being asked his preference.
Sd
Guardian Judge, Delhi
183
/
In the Court of the Guardian Judge, Delhi
Raj Malhotra PETITIONER
Versus
Shivani Malhotra
RESPONDENT
Statement of Baby Muskaan, daughter of Mr Raj Malhotra, aged about 6 years,
recorded in chambers
Q. You are a very pretty girl
A. (smiles)
Q. You go to the same school as your brother?
A. Yes
Q. Do you like your school?
A. Yes
Q. Have you made any friends so far?
A. Yes. Radhika
Q. Do you like to stay here, in India?
A. Yes. But I also miss home.
Q. Which home, here or in London?
A. In London.
Q. Who else is staying with you here?
A. My brother. Daddy and Daddy’s parents.
Q. Do your grandparents look after you?
A. Yes.
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Q. Are not your grandparents keeping bad health?
A. No.
Q. Who gets you ready for school?
A. My grandmother.
Q. Who cooks your food?
A. My grandmother.
Q. Has your Daddy ever taught you?
A. No. But he helps me to paint.
Q. What are your hobbies?
A. Painting and dancing.
Q. Do you know any one by the name of Ajay Khanna?
A. Yes, Ajay Uncle.
Q. Is he nice to you?
A. Yes, he has got me two dresses and a doll.
Q. Do you spend a lot of time with your brother?
A. Yes
Q. Who loves you more – Mummy or Daddy?
A. Both.
Q. Who do you love more – Mummy or Daddy?
A. Both.
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Q. Choose one.
A. (silence)
Q. Your Mummy and Daddy are living separately?
A. Yes.
Q. Who do you want to stay with?
A. Both.
Q. No, if you have to choose one?
A. (silence)
Q. If you have to choose one?
A. (silence)
Note: The children were present in the Courtroom for about 30 minutes prior to being
taken to the Chambers. It was noticed that Baby Muskaan sat throughout clutching the
hand of the Respondent, who was constantly comforting her.
Sd/-
Guardian Judge, Delhi
186
Extracts of relevant sections of Guardian and Wards Act 1890
7. Power of Court to make order as to guardianship-
(1) Where the Court is satisfied that it is for the welfare of the minor that order should be
made -
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian, the Court may make an order accordingly....
8. Person entitled to apply for order -
An order shall not be made under the last foregoing section except on the application of-
(a) the person desirous of being or claiming to be the guardian of the minor, or
(b) any relative or friend of the minor....
12. Power to make interlocutory order for production of minor and interim
protection of person and property-
(1) The Court may direct the person, if any, having the custody of the minor shall produce
him or cause him to be produced at such place and time and before such person as it
appoints, and may make such order for the temporary custody and protection of the person
or property of the minor as it thinks proper....
19. Guardian not to be appointed by the Court in certain cases -
Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the
property of a minor whose property is under the superintendence of a Court of Wards or to
appoint and declare a guardian of the person -
(a) of a minor who is a married female and whose husband is not, in the opinion of the
Court, unfit to be guardian of her person, or
(b) ‘ [***] of a minor whose father is living and is not, in the opinion of the Court, unfit to
be guardian of the minor, or
(c) of a minor whose property is under the superintendence of a Court of Wards competent
to appoint a guardian of the person of the minor.
187