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Habeas Corpus to US origin Child – Custody to Father

THE HON’BLE SRI JUSTICE A.RAJASHEKER REDDY
AND
THE HON’BLE JUSTICE G. SRI DEVI

W.P.NO.13658 OF 2021

ORDER :: (per the Hon’ble Sri Justice A. Rajasheker Reddy) This habeas corpus-writ petition under Article 226 of the Constitution of India is filed seeking to issue a writ more particularly one in the nature of writ of habeas corpus directing the official respondents to produce the minor child named Virat Ghadiam from the alleged unlawful custody of the 4th respondent, his natural mother and cause return of the Child to the jurisdiction of the Court at US in compliance with the orders dated 05-08-2020, 13-10-2020, 25-11-2020 and 03-06-2021 within a timeframe, and in failure to do so, to handover the minor Child to the petitioner to take back to the US in compliance of the orders passed by the US Court.

Pursuant to the notices issued to the respondents, learned Government Pleader for Home caused to produce the minor Child accompanied by her mother, the 4th respondent, before this Court through virtual mode who stated that the Child is in her safe custody.

The petitioner and the 4th respondent are husband and wife, are the residents of USA and are Doctors practicing medicine. The subject matter of dispute relates to the custody of minor child Virat Ghadiam, aged 7 years, born on 15-12-2019 at OSF St. Francis Medical Center, Peoria, USA. The passport and the birth certificate of the minor child would show that the minor child is US citizen as he was born and brought up in US. Due to vagaries of life, it appears relations strained between the husband and wife, which necessitated the 4th respondent to approach the US Court for shared parenting plan, monetary child support and other incidental reliefs, and the US Court seems to have passed an interim order dated 05-08-2020 observing that both parents are equally entitled to share parenting time and parenting decisions of their minor Child. It was also observed that all decisions in relation to the minor Child viz., education, religious, medical and healthcare and extra-curricular activities shall be decided jointly by the parents and both parties shall consult each other for consensus on the said decisions. The order dated 05-08- 2020 contains various other details as to parenting time allotted to the parties including the schedules during holidays as to spending time with the Child. The petitioner also seems to have filed petition for dissolution of their marriage in the US Court and the 4th respondent has filed her response to the said petition. The 4th respondent also filed for emergency order of protection seeking certain reliefs. Things could not stop there, proceedings were initiated by both the spouses against each other in US Court.

While the matters stood thus, the 4th respondent seems to have addressed an email dated 27-11-2020 to her Attorney in the US to the effect that she was compelled to go to India with her Child as both spouses are governed by the Indian laws by reason of their marriage performed in India and she did not wish to participate or further contest the proceedings in US Court and accordingly revoked the appointment of her Attorney to conduct the matter in US Court. It has also come on record that as part of reconciliation of the matrimonial ties, the 4th respondent seems to have contacted the petitioner and offered to return to US provided the petitioner withdraws the legal proceedings in the US Court, and believing the same the petitioner seems to have taken steps to withdraw the proceedings, but reserved liberty to reinstate the proceedings, at any time, in the event the 4th respondent fails to return to US along with the minor Child. The apprehension of the petitioner turned out to be true as the 4th respondent did not return to US along with her Child. That the 4th respondent having submitted to the jurisdiction of the US Court and having contested the matter through her attorney, clandestinely left the US on 21-11-2020 with her minor Child in contravention of the order passed by the US Court and without the consent of the petitioner thereby, committed international parental child abduction of the minor child to India. The orders passed by the US Court directing the 4th respondent not to remove the minor Child from the physical care of the petitioner have been violated by the 4th respondent. 4th respondent did not return to the US as assured to him and also she violated the orders passed by the Court at US, instead, returned to India and filed divorce petition before the Family Court, City Civil Court at Hyderabad claiming divorce and other incidental reliefs for custody of a minor child.

The Family Court at Hyderabad passed interim order dated 12- 04-2021 restraining the petitioner from removing the child from the custody of his Mother, the 4threspondent without following the due process of law and the proceedings are pending. When this matter came up for hearing, this Court having been appraised by the counsel as to the maintainability of this writ of habeas corpus petition, vide order dated 21-06-2016 passed the following order:-

“Notice before admission. Personal notice is permitted. Heard Sri Prabhjit Jauhar, learned counsel appearing for the petitioner, who submits that though the parties have subjected themselves to the jurisdiction at United States Court and the orders are passed, inter se, the 4th respondent by violating the orders passed by the US Court regarding parenting and other aspects, taken the child to India, as such, the custody of the child with the 4th respondent is illegal and therefore, the writ of habeas corpus lies. He further submits that the petitioner is ready to provide a home if the 4th respondent returns with the child to US, as already proceedings between the petitioner and the 4th respondent are pending before the US Courts. He relied upon a decision of the Supreme Court in YashitaSahu v. State of Rajasthan (2020) 3 SCC 67, and submitted that the Supreme Court upheld the order of the Rajasthan High Court in issuing the writ of habeas corpus for custody of child and there is also a direction to repatriate the child to USA for submitting jurisdiction of the US Courts. He also submits that as the, [the respondent, by violating the orders, brought the child to India, there is every likelihood that 4th respondent may again resort to the similar action. In view of the pleadings and the contentions of the learned counsel for the petitioner and also as per the law laid down by the Hon’ble Apex Court in Yashita Sahu’s case (supra), prima facie, we are of the view that the writ petition is maintainable and from the surrounding facts and circumstances, we are of the opinion that the 4th respondent shall deposit the passport of the child i.e. Virat Ghadiam before the Registrar (Judicial) of this Court until further orders and she is also restrained from moving the child from Hyderabad City, until further orders.”

Sri Prabhjit Jauhar, learned counsel appearing for the petitioner argued that equitable orders that have been passed by the Court of Law in US are binding on the 4th respondent as she contested the proceedings therein, therefore she be ordained to repatriate the Child to USA and submit to the proceedings of the US Court as those orders are binding on her and she cannot be allowed to unscrupulously flout the orders passed by the Court of law at US. Learned counsel placed reliance on the decisions in YASHITA SAHU vs. STATE OF RAJASTHAN (2020) 3 SCC 67) & NILANJAN BHATTACHARYA vs. STATE OF KARNATAKA (2020) SCC OnLine SC 928) and contended that orders of repatriation of the minor Child would be in the interest and welfare of the minor Child, as the petitioner has already been granted equal shared parenting time with Child and the same shall serve in the best interest and welfare of the minor Child.

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Smt.S. Vani, learned counsel for the 4th respondent, on the other hand submitted that the petitioner having filed counter affidavit in the OP filed by the petitioner for divorce and other reliefs cannot approbate and reprobate and seek for repatriation of the Child to US in compliance of the orders passed by the Court of Law at US which are subsequent to the passing of the equitable orders passed by the Family Court at Hyderabad. It is further contended that the remedy under writ of habeas corpus cannot be used for enforcement of the orders given by the foreign Court against the person and convert jurisdiction of the writ Court into that of an executing Court. Learned counsel relied on the decisions of the Supreme Court in LAHARI SAKHAMURI vs. SOBHAN KODALI (2019 7 SCC 311), &NITHAY ANAND RAGHAVAN vs. STATE OF NCT OF DELHI (2017 AIR (SC) 3137), to contend that the interest of child should be of paramount consideration in deciding child custody cases and the order of foreign Court must yield to the welfare of the child and any order for return of child to submit to foreign jurisdiction cannot be directed unless the same is in the best interest and welfare of the Child.

In YASHITA SAHU’s case (1supra) & NILANJAN BHATTACHARYA’s case (2 supra) wherein in a similar set of circumstances, the children who were US citizens, have been repatriated to their native Country keeping in view the principle of welfare of the Child as also the principle of comity of Courts and also the fact that the children were of US origin in an habeas corpus petition. Here in this case, going by the pleadings of the petitioner and provision assured to be provided by the petitioner in favour of his son, the minor Child, which is not seriously disputed by the 4th respondent, there seems to be no doubt that the Child would get the best facilities of education, social security at the hands of his father (petitioner) and the Child should not be deprived of the same only on the ground that the 4th respondent (mother) does not want to go back to US. The 4th respondentmother of the Child does not want to join her husband at US is altogether a different aspect from distancing the Child from the father, who is equally, if not, seems to be more concerned for the welfare of the minor Child. In the rejoinder affidavit filed by the petitioner it is stated that the petitioner and the 4th respondent purchased a property with an intention to settling permanently in US and the 4th respondent had paid substantial amounts for the purchase of the house property, which the petitioner is reportedly willing to leave it for the residence of his wife, the 4th respondent.

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Even otherwise the 4th respondent on 22-05-2020 invoked the jurisdiction of the US Courts by seeking emergency Protection Order wherein the petitioner was made to forcefully move out of the said house. However, the record placed before us indicate that the act of 4th respondent is of patent violation of the order dated 05-08-2020 and 13-10-2020 and also the latest order dated 03-06-2021 passed by the Court of Law at US which include a direction to return the minor Child back to US. In a break down of a marriage, the person who suffers the most is the Child born out of the wedlock for no fault of his. The Indian Law holds the welfare of the Child as a primary factor in deciding as to which spouse should get the custody of the Child atleast till the Child completes his/her minority.

In YASHITA SAHU’s case (1supra), the Supreme Court considered the maintainability of the writ of habeas corpus petition and also in seeking consequential reliefs of repatriation of the child to the foreign Court and held as follows:-

“28.Nationality of the child — The child is a citizen of the USA by birth. Her father was already working in the USA when he got married. We are told that the mother had visited the USA once before marriage and when she got married it was done with the knowledge that she may have to settle down there. The child was born in a hospital in the USA and the mother did not come back to India for delivery which indicates that at that time the parents wanted the child to be a citizen of the USA. Since the child is a citizen of the USA by birth and holds a passport of that country, while deciding the issue of custody we have to take this factor into consideration.

Whether a writ of habeas corpus is maintainable ?

10. It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child. This has been done in Elizabeth Dinshaw v. Arvand M. Dinshaw [Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13] , Nithya Anand Raghavan v. State (NCT of Delhi) [Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454 : (2017) 4 SCC (Civ) 104] and Lahari Sakhamuri v. Sobhan Kodali [Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311 : (2019) 3 SCC (Civ) 590] among others. In all these cases, the writ petitions were entertained. Therefore, we reject the contention of the appellant wife that the writ petition before the High Court of Rajasthan was not maintainable.

Comity of Courts-14. In the fast shrinking world where adults marry and shift from one jurisdiction to another, there are increasing issues of jurisdiction as to which country’s courts will have jurisdiction. In many cases, the jurisdiction may vest in two countries. The issue is important and needs to be dealt with care and sensitivity. Though the interest of the child is extremely important and is, in fact, of paramount importance, the courts of one jurisdiction should respect the orders of a court of competent jurisdiction even if it is beyond its territories. When a child is removed by one parent from one country to another, especially in violation of the orders passed by a court, the country to which the child is removed must consider the question of custody and decide whether the court should conduct an elaborate enquiry on the question of child’s custody or deal with the matter summarily, ordering the parent to return the custody of the child to the jurisdiction from which the child was removed, and all aspects relating to the child’s welfare be investigated in a court in his/her own country.

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19. We are of the considered view that the doctrine of comity of courts is a very healthy doctrine. If courts in different jurisdictions do not respect the orders passed by each other it will lead to contradictory orders being passed in different jurisdictions. No hard-and-fast guidelines can be laid down in this regard and each case has to be decided on its own facts. We may, however, again reiterate that the welfare of the child will always remain the paramount consideration.”

In LAHARI SAKHAMURI’s case (3 supra), in fact sending of child back to US was considered best for the interest of child as it will let him enjoy the natural environment of love, care and attention of parents and he will be able to resume his school life.

In NITHAY ANAND RAGHAVAN’s case (4 supra), the Supreme Court directed the appellant therein to participate in the proceedings of US Court subject to outcome of the proceedings of the Family Court at New Delhi. Hence, both the decisions perse does not impose any restriction to issue appropriate directions for return of the Child to foreign jurisdiction subject to exceptions stated therein. As stated, there is nothing to suggest that the interest of the Child would be in jeopardy if the custodian of the Child is directed to return the Child to the foreign jurisdiction in compliance of the orders already passed by the foreign Court at US.

Essentially, the application of principle to repatriate the child to foreign jurisdiction cannot be decided unless the same is in the best interest and welfare of the Child. The US Court vide order dated 13-10-2020 passed an order wherein both the parties agreed that to share equal parenting time as they had previously agreed upon vide order dated 05-08-2020. The petitioner has also alleged certain violations not only of the orders passed by the US Court but also committed forgery of his signature on the consent form as it is mandatory to obtain the consent of both the parents to obtain a visa for a minor child, who is a US citizen. There is nothing on record to show anything adverse on the part of the petitioner which remotely indicate that it is not in the best interest and welfare of the minor Child, to desist this Court from ordering repatriation to comply to the jurisdiction of the Court of law at US. Apart this, the minor child is born in US and a citizen of the US; the petitioner is well a educated person being a Doctor practicing in Internal Medicine in US and he is statedly ready and willing to take best care of his Child. The principle of welfare of the Child as well the principle of comity of Courts, both require the minor Child to be repatriated to US and the issue concerning the welfare and custody of the minor Child ought to be decided by the Court in US. The pleas now being taken by the 4th respondent can as well be taken before the Court at US viz., that the marriage is performed at India and effective and efficacious reliefs can be obtained from the jurisdictional Courts in India.

In the circumstances, the 4th respondent is directed to return the minor Child Virat Ghadiam to the jurisdiction of the US Court in compliance of the orders already passed and seek appropriate orders therefrom including bringing back the Child to India on the grounds available to her under law, if so advised, within a period of two months, from the date of receipt of a copy of this order, failing which, it is open for the petitioner to move this Court for appropriate further orders in the matter.

In the light of the orders passed in the writ petition, in so far as the order 12-04-2021 passed in IA No.584 of 2020 in OP No.1021 by the Family Court at Hyderabad restraining the petitioner (respondent therein) from removing the minor child from the custody of the mother, the 4th respondent herein stands dissolved.

In the result, the writ petition is allowed. Miscellaneous petitions if any pending shall stand disposed of. There shall be no order as to the costs.

A.RAJASHEKER REDDY, J
G. SRI DEVI, J
Dated : 30-11-2021

Note: The Registrar (Judicial) is directed to return the passport to the 4th respondent (mother of the child) to enable her to move the child Virat Ghadiam to the jurisdiction of the US Court.

(B/O)
NRG/AR-cum-PS
15
THE HON’BLE SRI JUSTICE A.RAJASHEKER REDDY
AND
THE HON’BLE JUSTICE G. SRI DEVI
W.P.NO.13658 OF 2021
DATED : 30-11-2021

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