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Judgments of Supreme Court of India and High Courts

Shriram Sankaran vs The Inspector Of Police on 29 May, 2017









Shriram Sankaran,
S/o Sankaran Sethuraman,
Aged about 38 years,
R/o 4057 E White Aster St,
Phoenix AZ – 850 44, U.S.A. …Petitioner

(By Sri S. Sreevatsa, Senior Counsel for
Sri Vijaykumar Prakash, Advocate)


1. The Inspector of Police,
Basavangudi Police Station,
Krishna Rajendra Road,
NR Colony, Bengaluru,
Karnataka – 560 004.

2. State of Karnataka,
Home Department,
Principal Secretary (PCAS),

Room No.219, II Floor,
Vidhana Soudha,
Bengaluru – 560 001.

3. The Commissioner of Police,
Bangalore City, Infantry Road,
Bengaluru – 560 001.

4. Ministry of External Affairs,
Principal Secretary,
Union of India, Shasthri Bhavan,
New Delhi – 110 001.

5. Smt. Savitha Sethuram,
D/o H.R. Sethuram,
Aged about 35 years,
R/o Flat No.2034, B- Block,
Krest Park Apartment,
No.39, Kanakapura Road,
Bangalore – 560 004.

6. H.R. Sethuram,
S/o person unknown to petitioner,
Aged about 65 years,
R/o Flat No.2034, B- Block,
Krest Park Apartment,
No.39, Kanakapura Road,
Bangalore – 560 004.

7. Radha Sethuram,
W/o H.R. Sethuram,
Aged about 62 years,
R/o Flat No.2034, B- Block,
Krest Park Apartment,

No.39, Kanakapura Road,
Basavanagudi, Bangalore – 560 004. … Respondents

(By Sri I. Tharanath Poojary, AGA for R-1 to R-3,
Sri R. Veerendra Sharma, Advocate for R-4,
Smt. Hemalata Mahishi, Advocate for R-5)

Baby Shrishti Shriram,
D/o Mr. Shriram Sankaran,
Aged around 3 years. … Detenu

This W.P.H.C. is filed under Articles 226 and 227 of the
Constitution of India praying that the Hon’ble High Court be
pleased to issue appropriate order, direct or writ in the nature of
habeas corpus directing the respondents to cause the production of
the person of detenu viz baby Shrishti, aged 3 years before this
Hon’ble Court and hand over the detenu to the legal custody of the

This W.P.H.C. having been heard and reserved for orders on
27.4.2017, coming on for pronouncement of orders this day, Ashok
B. Hinchigeri J, made the following:


This petition is filed seeking a writ of habeas corpus directing

the respondents to cause the production of the person of detenu,

Baby Srishti, aged about 3 years before this Court and hand over

the said detenu to the legal custody of the petitioner.

2. The facts of the case in brief are that the petitioner and

respondent No.5 got married on 18.1.2010 at Shivashakthi

Convention Hall in Bengaluru, as per the Hindu rites and customs.

In their wedlock, a female child, namely, Srishti is born on

19.11.2013 at Phoenix, AZ in U.S.A. The child is a citizen of U.S.A.

by birth. On the ground that respondent No.5 was treating the

petitioner with cruelty, the petitioner filed the divorce petition

against her in the Superior Court of the State of Arizona in the

Country of Maricopa in October 2014. Respondent No.5

submitted herself to the jurisdiction of the said Court in the U.S.A.

The Court of Maricopa passed the consensual order. It was held

that the petitioner and respondent No.5 be awarded joint legal

decision-making regarding the child.

3. The said U.S.A. Court ordered that if the petitioner or

respondent No.5 proposes to travel with the child outside U.S.A.,

the parent must provide the other parent with a written itinerary of

their travel. It is now the grievance of the petitioner that the

respondent No.5 has detained the child beyond the vacation

schedule, which ended on 18.10.2016 and that thereby she has been

denying the access to the petitioner. Complaining the abduction of

the child by the respondent No.5, the petitioner has already filed an

emergency petition for contempt, enforcement of custody order,

warrant for immediate production and issuance of writ of habeas

corpus in U.S.A. Court. Considering the conduct of the respondent

No.5, the Superior Court of Arizona vide its order, dated

24.10.2016 granted the petitioner sole legal decision-making

authority in respect of the detenu.

4. Sri S. Sreevatsa, the learned Senior Counsel appearing for

Sri Vijaykumar Prakash for the petitioner submits that the child is

being illegally detained. He submits that the respondent No.5

cannot deprive the American Court of its jurisdiction to decide

upon the custody of Srishti by removing her to India. He relies on

the Apex Court’s judgment in the case of SMT. SURINDER


ANOTHER reported in (1984) 3 SCC 698 to advance the

submission that the forum-shopping cannot be encouraged, more

so when the child is a citizen of America. When the matrimonial

home of the spouses is in America and when the American Court

has passed the order regarding the custody of the child, the

respondent No.5 is not justified in approaching the Family Court in

Bengaluru to perpetuate her illegal custody of the child.

5. He relies on the Hon’ble Supreme Court’s decision in the

case of V. RAVI CHANDRAN (DR.) (2) v. UNION OF

INDIA AND OTHERS reported in (2010) 1 SCC 174 to buttress

his submission that the sudden and unauthorized removal of

children from one country to another is too frequent nowadays and

that therefore it is the duty of all courts in all countries to do all

they can do to ensure that the wrongdoer does not gain an

advantage by his wrongdoing. Paragraph No.35 of the said decision

is extracted hereinbelow:

“35. The facts and circumstances noticed above leave no
manner of doubt that merely because the child has been brought to
India by Respondent 6, the custody issue concerning minor child
Adithya does not deserve to be gone into by the courts in India
and it would be in accord with principles of comity as well as on
facts to return the child back to the United States of America
from where he has been removed and enable the parties to

establish the case before the courts in the native State of the child
i.e. United States of America for modification of the existing
custody orders. There is nothing on record which may even
remotely suggest that it would be harmful for the child to be
returned to his native country.”

6. The learned Senior Counsel submits that as the respondent

No.5 has not filed any petition for the modification of the

American Court’s order, she is not entitled to maintain a petition

for the custody of the child in India. In support of his submissions,

he relies on the Apex Court’s judgment in the case of ARATHI


reported in (2013) 15 SCC 790. The relevant portions of the said

decision, relied upon by him, are extracted hereinbelow:

“29. ………………………

In our opinion, these observations leave no manner of doubt
that no relief could be granted to the appellant in the present
proceedings given her conduct in removing Anand from USA in
defiance of the orders of the court of competent jurisdiction. The
Court has specifically approved the modern theory of conflict of
laws, which prefers the jurisdiction of the State which has the
most intimate contact with the issues arising in the case. The

Court also holds that jurisdiction is not attracted “by the
operation or creation of fortuitous circumstances”. The Court
adds a caution that to allow the assumption of jurisdiction by
another State in such circumstances will only result in encouraging
forum shopping. The aforesaid observations are fully applicable in
the facts and circumstances of this case.

33. In our opinion, the Andhra Pradesh High Court has
decided to exercise jurisdiction summarily and directed the
appellant to return the child to USA. This course is absolutely
permissible as is apparent from the observations made by this
Court in para 30 of the aforesaid judgment in V. Ravi
Chandran (2) case. This Court in V. Ravi Chandran (2) case
also rejected the objection raised by Respondent 6 in the counter-
affidavit that the American court, which passed the order/decree
has no jurisdiction and being inconsistent with Indian laws
cannot be executed in India. It was observed that despite the fact
that the respondent had been staying in India for more than 2
years, she has not pursued any legal proceeding for the sole custody
of the minor child or for the declaration that the orders passed by
the American courts concerning the custody of minor child are
null and void and without jurisdiction. Similar are the facts in
the present case. The wife has not pursued any legal proceeding for
seeking custody of Anand. She has also not sought a declaration
that the orders passed by the American courts are null and void

and are without jurisdiction. Therefore, in our opinion, the High
Court of Andhra Pradesh cannot be said to have acted

7. He also read out paragraph No.4 from the Constitutional

Bench of the Hon’ble Supreme Court’s decision in the case of


AND OTHERS reported in (1973) 2 SCC 674. The same is

extracted hereinbelow:

“4. It will be seen from this brief history of the writ of habeas
corpus that it is essentially a procedural writ. It deals with the
machinery of justice, not the substantive law. The object of the
writ is to secure release of a person who is illegally restrained of
his liberty. The writ is, no doubt, a command addressed to a
person who is alleged to have another person unlawfully in his
custody requiring him to bring the body of such person before the
Court, but the production of the body of the person detained is
directed in order that the circumstances of his detention may be
inquired into, or to put it differently, “in order that appropriate
judgment be rendered on judicial enquiry into the alleged unlawful
restraint”. The form of the writ employed is “We command you
that you have in the King’s Bench Division of our High Court of
Justice – immediately after the receipt of this our writ, the body of

A.B. being taken and detained under your custody – together
with the day and cause of his being taken and detained – to
undergo and receive all and singular such matters and things as
our court shall then and there consider of concerning him in this
behalf”. The italicized words show that the writ is primarily
designed to give a person restrained of his liberty a speedy and
effective remedy for having the legality of his detention enquired
into and determined and if the detention is found to be unlawful,
having himself discharged and freed from such restraint. The most
characteristic element of the writ is its peremptoriness and, as
pointed out by Lord Halsbury, L.C., in Cox v. Hakes “the
essential and leading theory of the whole procedure is the
immediate determination of the right to the applicant’s freedom”

and his release, if the detention is found to be unlawful. That is
the primary purpose of the writ; that is its substance and end.
The production of the body of the person alleged to be wrongfully
detained is ancillary to this main purpose of the writ. It is merely
a means for achieving the end which is to secure the liberty of the
subject illegally detained. In the early days of development of the
writ, as pointed out above, the production of the body of the
person alleged to be wrongfully detained was essential, because
that was the only way in which the Courts of common law could
assert their jurisdiction by removing parties from the control of the
rival courts and thereby impairing the power of the rival courts to

deal with the causes and persons before them. The common law
courts could not effectively order release of the persons unlawfully
imprisoned by order of rival courts without securing the presence of
such persons before them and taking them under custody and
control. But the circumstances have changed long since and it is no
longer necessary to have the body of the person alleged to be
wrongfully detained before the Court in order to be able to inquire
into the legality of his detention and set him free, if it is found
that he is unlawfully detained. The question is whether in these
circumstances it can be said that the production of the body of the
person alleged to be unlawfully detained is essential in an
application for a writ of habeas corpus. We do not think so.
There is no reason in principle why that which was merely a step
in the procedure for determining the legality of detention and
securing the release of a subject unlawfully restrained should be
elevated to the status of a basic or essential feature of the writ.
That step was essential to the accomplishment of the purpose of
the writ at one time, but it is no longer necessary. The inquiry
into the legality of the detention can be made and the person
illegally detained can be effectively set free without requiring him
to be produced before the Court. Why then should it be necessary
that the body of the person alleged to be wrongfully detained must
be produced before the Court before an application for a writ of
habeas corpus can be decided by the Court ? Would it not mean

blind adherence to form at the expense of substance ? Why should
we hold ourselves in fetters by practice which originated in
England about three hundred years ago on account of certain
historical circumstances which have ceased to be valid even in that
country and which have certainly no relevance in ours? But we
may point out that even in England it is no longer regarded as
necessary to order production of the body of the person alleged to
be wrongfully detained, in an application for a writ of habeas

8. As the custody of the child from the petitioner is snatched

away with impunity, the writ of habeas corpus is required to be

issued in this case, so submits that learned Senior Counsel. In

support of his submissions, he read out paragraph Nos.3 and 7

from the Hon’ble Supreme Court’s decision in the case of CAPT.


reported in (1981) 2 SCC 277. It reads as follows:

“3. There can be no question that a writ of habeas corpus is
not to be issued as a matter of course, particularly when the writ
is sought against a parent for the custody of a child. Clear
grounds must be made out. Nor is a person to be punished for
contempt of court for disobeying an order of court except when the

disobedience is established beyond reasonable doubt, the standard
of proof being similar, even if not the same, as in a criminal
proceeding. Where the person alleged to be in contempt is able to
place before the court sufficient material to conclude that it is
impossible to obey the order, the court will not be justified in
punishing the alleged contemner. But all this does not mean that
a writ of habeas corpus cannot or will not be issued against a
parent who with impunity snatches away a child from the lawful
custody of the other parent, to whom a court has given such
custody. Nor does it mean that despite the contumacious conduct
of such a parent in not producing the child even after a direction
to do so has been given to him, he can still plead justification for
the disobedience of the order by merely persisting that he has not
taken away the child and contending that it is therefore,
impossible to obey the order. In the case before us, the evidence of
the mother and the grandmother of the child was not subjected to
any cross-examination; the appellant-petitioner did not choose to
go into the witness-box; he did not choose to examine any witness
on his behalf. The evidence of the grandmother, corroborated by
the evidence of the mother, stood unchallenged that the appellant-

petitioner snatched away Sandeep when he was waiting for a bus
in the company of his grandmother. The High Court was quite
right in coming to the conclusion that the appellant-petitioner had
taken away the child unlawfully from the custody of the child’s

mother. The writ of habeas corpus was, therefore, rightly issued.
In the circumstances, on the finding, impossibility of obeying the
order was not an excuse which could be properly put forward.

7. It was argued that the wife had alternate remedies under
the Guardians and Wards Act and the Code of Criminal
Procedure and so a writ should not have been issued. True,
alternative remedy ordinarily inhibits a prerogative writ. But it is
not an impassable hurdle. Where what is complained of is an
impudent disregard of an order of a court, the fact certainly cries
out that a prerogative writ shall issue. In regard to the sentence,
instead of the sentence imposed by the High Court, we substitute
a sentence of three months’ simple imprisonment and a fine of
rupees five hundred. The sentence of imprisonment or such part of
it as may not have been served will stand remitted on the
appellant-petitioner producing the child in the High Court. With
this modification in the matter of sentence, the appeal and the
special leave petition are dismissed. Criminal Miscellaneous
Petition 677 of 1981 is dismissed as we are not satisfied that it
is a fit case for laying a complaint.”

9. The learned Senior Counsel submits that the respondent

No.5 cannot be permitted to resile from the undertaking given by

her before the American Court. She left America for India with the

child on 5.10.2016 after promising to the American Court to return

to America on 18.10.2016. The solemn undertaking given to the

American Court is broken. The sanctity of the proceedings in any

court cannot be permitted to be disputed. For making this

submission, he relies on the Hon’ble Supreme Court’s decision in


SHRINIVAS NAYAK AND ANOTHER reported in (1982) 2

SCC 463. Paragraph No.4 of the said decision reads as follows:

“4. When we drew the attention of the learned Attorney-

General to the concession made before the High Court, Shri
A.K. Sen, who appeared for the State of Maharashtra before the
High Court and led the arguments for the respondents there and
who appeared for Shri Antulay before us intervened and protested
that he never made any such concession and invited us to peruse
the written submissions made by him in the High Court. We are
afraid that we cannot launch into an inquiry as to what
transpired in the High Court. It is simply not done. Public policy
bars us. Judicial decorum restrains us. Matters of judicial record
are unquestionable. They are not open to doubt. Judges cannot be
dragged into the arena. “Judgments cannot be treated as mere
counters in the game of litigation”. (1) We are bound to accept

the statement of the Judges recorded in their judgment, as to what
transpired in court. We cannot allow the statement of the Judges
to be contradicted by statements at the Bar or by affidavit and
other evidence. If the Judges say in their judgment that something
was done, said or admitted before them, that has to be the last
word on the subject. The principle is well-settled that statements of
fact as to what transpired at the hearing, recorded in the judgment
of the court, are conclusive of the facts so stated and no one can
contradict such statements by affidavit or other evidence. If a party
thinks that the happenings in court have been wrongly recorded in
a judgment, it is incumbent upon the party, while the matter is
still fresh in the minds of the Judges, to call the attention of the
very Judges who have made the record to the fact that the
statement made with regard to his conduct was a statement that
had been made in error. (2) That is the only way to have the
record corrected. If no such step is taken, the matter must
necessarily end there. Of course a party may resile and an
appellate court may permit him in rare and appropriate cases to
resile from a concession on the ground that the concession was
made on a wrong appreciation of the law and had led to gross
injustice; but, he may not call in question the very fact of making
the concession as recorded in the judgment.”


10. The learned Senior Counsel has also relied upon the

following citations:

(i) (2011) 6 SCC 479 – Ruchi Majoo v. Sanjeev Majoo

(ii) (2000) 3 SCC 14 – Sarita Sharma v. Sushil Sharma

(iii) (2010) 1 SCC 591 – Shilpa Aggarwal (Ms) v. Aviral
Mittal and another

(iv) (1987) 1 SCC 42 – Mrs. Elizabeth Dinshaw v. Arvand
M. Dinshaw and another

(v) (2015) 5 SCC 450 – Surya Vadanan v. State of Tamil
Nadu and others

(vi) (1998) 1 SCC 112 – Dhanwanti Joshi v. Madhav Unde

(vii) (2003) 8 SCC 342 – Union of India v. Paul Manickam
and another

11. Smt. Hemalata Mahishi, the learned counsel appearing for

the respondent No.5 has raised a preliminary objection. She submits

that the habeas corpus writ petition is not at all maintainable, as the

retention of the child’s custody by the respondent No.5 is pursuant

to the Family Court’s order, dated 22.10.2016 passed in



12. She sought to draw support from the Division Bench’s

judgment of Madras High Court in the case of MUTHIAN



in MANU/TN/3407/2014 (H.C.P.No.3175/2014, disposed of on

14.11.2014). Paragraph No.12 of the said decision, read out by her,

is extracted hereinbelow:

“12. Having gone through the material papers and the
arguments advanced by both the learned counsel, we are of the
considered view that the petitioner, who is the father of the minor
girl is not entitled to seek the remedy of custody of the child, by
way of this Habeas Corpus Petition, filed under Article 226 of
the Constitution of India, by raising a plea of illegal detention of
the child by the mother, since the child is in the custody of the
mother. On the facts and circumstances, we are of the view that
the Petition is liable to be dismissed and accordingly, the Habeas
Corpus Petition is dismissed.”

13. She submits that the respondent No.5 has filed

O.S.No.261/2016 seeking, inter alia, the relief of declaration that

the order, dated 1.8.2016 passed by the Court of Arizona, Maricopa

country in FC 2014-001572 is not conclusive and is not binding on

her. In the said suit proceedings, the Family Court is persuaded to

grant an interim order, dated 22.10.2016 (Annexure-R3) restraining

the petitioner, his relatives, agents and servants from interfering

with the peaceful life of the respondent No.5 and her minor

daughter, Srishti and restraining him from attempting to

communicate to the respondent No.5. She submits that the said

order is already communicated to the petitioner through the letter,

dated 25.10.2016 (Annexure-R4). She submits that she has also filed

G WC No.297/2016 in the Family Court seeking, inter alia, that

permanent, sole and legal custody of the child be given to her.

14. She submits that the fifth respondent’s marital life with

the petitioner was miserable, that the petitioner has committed

fraud on the respondent No.5, coerced her into submission to the

jurisdiction of the American Court, trapped her and made her

helpless in a foreign country. She submits that this writ petition is

filed with the malafide intention and oblique motive of avoiding the

trial in Indian courts. She submits that the orders of the American

Court cannot be enforced against the respondent No.5, as India is

not a signatory to the Hague Convention and as there is no

reciprocatory agreement between India and America. She submits

that Section 44A of the Code of Civil Procedure, 1908 provides for

execution of decrees passed by courts of reciprocating territory.

15. She submits that Srishti is a 3 years’ old girl and she

requires the care, concern and protection of the mother. She

submits that Section 6(a) of the Hindu Minority and Guardianship

Act, 1956 also states that the custody of a minor, who is below 5

years, shall ordinarily be with the mother.

16. She submits that the American Court’s order cannot be

treated as conclusive in the light of the provisions contained in

Section 13 (c), (e) and (f) of the CPC, which read as follows:

“13.When foreign judgment not conclusive.- A
foreign judgment shall be conclusive as to any matter thereby
directly adjudicated upon between the same parties or between
parties under whom they or any of them claim litigating under the
same title except-


(a) xxxxx

(b) xxxxx

(c) where it appears on the face of the proceedings to be
founded on an incorrect view of international law or a refusal to
recognise the law of India in cases in which such law is applicable;

(d) xxxxx

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law
in force in India.”.

17. She submits that the petitioner cannot file any execution

petition. She submits that the Indian Courts have to decide the

issue regarding the validity of the foreign decree in accordance with

the Indian law.

18. She refers to the Hon’ble Supreme Court’s decision in


AND OTHERS reported in (2015) 5 SCC 450, wherein it is held

that merely because a parent has violated an order of a foreign

Court, it does not mean that, that parent should be penalized for it.

Taking support from the said decision she would contend that it is

appropriate to have an elaborate enquiry by the Family Court in

Bengaluru to decide whether the child should be repatriated to the

foreign country and subjected to the jurisdiction of the foreign


19. She has also relied on the following decisions:

(i) AIR 1975 SC 105 – Smt. Satya v. Teja Singh

(ii) MANU/SC/0862/1994 1994 (4) SCALE 445 –

Neeraja Saraph (Smt) v. Jayant V.Saraph and another

(iii) (2000) 3 SCC 14 – Santa Sharma v. Sushil Sharma

(iv) W.P.No.20709/2015 disposed of on 21.10.2016
(Andhra High Court) – Arvind Gopal Krishna Chawda
v. The State of Telangana.

20. Thus the learned advocates have advanced marathon

arguments. But the case falls within a very narrow compass. The

writ of habeas corpus is used primarily to secure the release of a

person, who has been detained unlawfully or without any legal

justification. Where the rights of a detenu either under the

Constitution or under other laws are violated, the writ power of the

court can and must run to his rescue. But habeas corpus is not

granted when a person has been committed to custody under an

order from a competent court. We may profitably refer to the

Hon’ble Supreme Court’s decision in the case of MANUBHAI


reported in (2013) 1 SCC 314. Paragraph No.31 of the said decision

reads as follows:

“31. ……It is well-accepted principle that a writ of habeas
corpus is not to be entertained when a person is committed to
judicial custody or police custody by the competent court by an
order which prima facie does not appear to be without jurisdiction
or passed in an absolutely mechanical manner or wholly illegal.
As has been stated in B.Ramachandra. Rao and Kanu Sanyal,
the court is required to scrutinize the legality or otherwise of the
order of detention which has been passed. Unless the court is
satisfied that a person has been committed to jail custody by virtue
of an order that suffers from the vice of lack of jurisdiction or
absolute illegality, a writ of habeas corpus cannot be granted.”

21. Habeas corpus is not available to question the

correctness of a decision of the legally constituted court of

competent jurisdiction. The petition for habeas corpus is

unavailable when the child is in the custody of the mother under

the process issued by a competent court of law in pursuance of a

subsisting order.

22. The petitioner has not challenged the interim order,

dated 22.10.2016 (Annexure-R3) granted by the Family Court. Nor

has he made any application before the Family Court for vacating

the said interim order. Even assuming that the Family Court’s order

is unsustainable in the wake of the American Court’s order, the writ

of habeas corpus cannot be maintained. If according to the

petitioner, the Family Court’s order is illegal, the same is to be

challenged in appropriate proceedings.

23. It is not known why the petitioner is not prepared to

make an application for vacating the interim order, dated

22.10.2016. If the petitioner is advised to contend that the suit

proceedings themselves are not maintainable, it shall also be open

to the petitioner to make an application invoking Order VII Rule 11

of CPC. If one such application is filed, it is for the Family Court to

decide the same in accordance with law. It is again for the Family

Court to decide whether or not to hold the enquiry; if it resolves to

hold the enquiry, it is again for the Family Court to decide whether

the enquiry has to be summary or elaborate. In saying so, we are

fortified by the Apex Court’s judgment in the case of Surya

Vadanan (supra). Further, we also deem it necessary and just to

request the Family Court to dispose of such I.A.s, in the event of

the petitioner filing them, as expeditiously as possible and in any

case within an outer limit of four weeks from the date of such filing.

24. The judgments relied upon by the petitioner’s side do not

come to its rescue in any way, as the facts of the case on hand are

different from those of the reported cases. Viewed from any angle,

this habeas corpus writ petition is not maintainable in the wake of

the Family Court’s interim order, dated 22.10.2016 by virtue of

which the custody of the child continues to be with the fifth

respondent mother.


25. In the result this habeas corpus writ petition is dismissed.

Needless to observe that no opinion whatsoever is expressed on the

sustainability or otherwise of the initiation of the proceedings

before the Family Court and/or granting of the interim order, dated

22.10.2016 by the Family Court. The same are to be assailed in

appropriate proceedings before appropriate forum.

26. No order as to costs.






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