Dismissed

Smt.Deepika kasturi v. The State of Ap., rep.by its PRincipal Secretary

Telangana HC22 Feb 2012WP/3837/2012

Case brief

AI extract

What is this about?

The petitioner sought a Writ of Habeas Corpus to produce her two minor children from her husband, alleging marital harassment. The Court observed that the children's whereabouts were known, no foreign custody orders existed, and the dispute was domestic. It held that writ jurisdiction is not proper for child custody issues.

What did the court decide?

Writ of Habeas Corpus dismissed; petitioner directed to initiate appropriate proceedings under custody laws before the Family Court.

Smt.Deepika kasturi Vs The State of Ap… — Child Custody and Guardianship | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD

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W.P. No. 3837 of 2012

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O r d e r: (Per Sri. N.V. Ramana, J.)

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The petitioner has filed this writ petition praying to grant Writ of Habeas Corpus, directing respondent Nos. 1 to 4 to produce the two minor children, namely Baby Yashaswini Vadrevu and Babu Hiranmayi Vadrevu, who are with respondent No.5 and hand over their custody to her.

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The petitioner states that she married respondent No.5 in the year 1998 at Hyderabad and stayed with him and his parents at Kukatpally, Hyderabad. That respondent No.5 and his parents harassed her for additional dowry, and unable to bear the harassment, she filed complaint against them in the year 1999, and based on her complaint, the police registered a criminal case for the offences punishable under Section 498-A IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961. Subsequently, at the intervention of elders and well-wishers and on the assurance given by her husband and his parents that they will not harass her, she compromised the matter. That they were blessed with Baby Yashaswini in the year 2001 in India.

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That in the year 2002, her husband got employment in Bahrain, and she accompanied him to Bahrain and that thereafter in the year 2006, her husband got employment in Dubai, and they shifted to Dubai and that she also worked there. During their stay at Dubai, they were blessed with another baby named Baby Hiranmayi. While so, she states that her husband brought a lady from India and introduced her as maid-servant, and later developed illicit intimacy with her, and started harassing her.

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That her husband got her visa cancelled and withheld her passport, and on her complaint, the Dubai Court, passed an order for handing over her passport. That in spite of the said order, her husband did not hand over the passport, and on that count, he was also put behind bars, and finally he handed over her passport. As her husband got her visa cancelled, she had no option, but come back to India.

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She states that having come back to India, she lodged a complaint with the police, and based on her complaint, a case in Crime No. 27 of 2012 on the file of Women Police Station, C.C.S., Hyderabad, for the offences punishable under Sections 498-A, 406 and 506 IPC r/w. Sections 4 and 6 of the Dowry Prohibition Act, 1961 was registered against respondent No.5. She states that she is worried about her two minor daughters, who in the custody of respondent No.5, and therefore filed the present writ petition.

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Heard the learned counsel for the petitioner, the learned Assistant Government Pleader representing the learned Advocate General for respondent Nos. 1 to 3 and the learned Assistant Solicitor General for respondent No.4.

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As can be seen from the pleadings of the petitioner, there are matrimonial disputes between her and respondent No.5, who is her husband. The disputes started while they were staying in Dubai. The petitioner returned from Dubai to India, while the two minor children are living with their father, namely respondent No.5, who is the husband of the petitioner. The petitioner having returned to India also filed criminal case against respondent No.5. The petitioner cannot dispute that respondent No.5, who is her husband, is also a natural guardian of the two minor children.

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A Writ of Habeas Corpus, in a petition filed under Article 226 of the Constitution of India, can be issued to the police directing them to produce a person or persons, only if the person or persons, whose production is sought, are said to be illegally detained by the police or any other person or persons or if the whereabouts of such person or persons are not known.

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The petitioner in support of her argument that Writ of Habeas Corpus can be issued to produce the child in the Court relied on the judgments of the Apex Court in Dr. V. Ram Chandran v. Union of India & Ors .^[1] and of this Court in Alla Venkata Sanath Babji Reddy

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v. Government of Andhra Pradesh^[2] . The ratio laid down in the said judgments, cannot be applied to the facts of the present case. The facts of the present case are totally different from the facts appearing in the cases relied on by the petitioner and they can well be distinguished.

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I n Dr. V. Ram Chandran v. Union of India & Ors., the petitioner and the respondent got married in Andhra Pradesh. They

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went to the USA, where they were blessed with a male child. Marital disputes arose between them. The respondent-wife moved the New York State Supreme Court for divorce and dissolution of marriage, and the same was granted. The Court granted joint custody of the child to the petitioner and respondent, making it clear that the other party must keep informed about the whereabouts of the child. The respondent brought the child to India informing the petitioner that she would reside with her parents in Chennai. The petitioner filed petition before the New Your Family Court, alleging violation of the custody order and also seeking its modification. The Court while ordering notice to the respondent, granted temporary sole legal and physical custody of the child and directed the respondent to return the child and his passport to the petitioner. As the whereabouts of the child were not known, the petitioner filed Writ of Habeas Corpus seeking direction to the respondent to produce the child and handover his custody along with passport to him. The Court directed the CBI to trace the whereabouts of the minor and produce him as the respondent could not be traced. The CBI traced the respondent and the child at Chennai. In the light of such facts situation, the Apex Court having considered the question as to what should be done with respect to custody when a child is removed by a parent from one country to another, held as follows:

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While dealing with a case of custody of child removed by a parent from one country to another in contravention to the orders of the court where the parties had set up their matrimonial home, the court in the country to which child has been removed must first consider the question whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to child’s welfare be investigated in a court in his own country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of child including stability and security, loving and understanding care and guidance and full development of the child’s character, personality and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case. However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the Court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the Court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interest of the child.

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Having held so, and keeping in view the best interests of the child, the Apex Court directed the respondent to act as per the consent order passed by the Family Court of State of New York, and that she

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will take the child of her own to the USA within 15 days and report to that Court, and if she fails to do, then the child along with the passport shall be restored to the petitioner to be taken to the USA.

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I n Alla Venkata Sanath Babji Reddy v. Government of Andhra Pradesh^[3] , the petitioner-husband and the respondent-wife were married in India in the year 2004. After their marriage, they lived in the USA. They were blessed with a female child in the USA in the year 2007. Both of them came to India in March, 2009 along with the child. It appears, matrimonial disputes cropped up between them. The petitioner, who is the husband went to the USA and filed case for divorce against the respondent, in Benton Country Court, Arkansas on 12.06.2009. He also moved an application for emergency temporary child custody. But the same was declined. The petitioner and his family, then moved to Michigan. There, he moved an application before the Oakland Court, for custody of the child. The Oakland Court, passed an ex parte order granting child custody to the petitioner. As the respondent-wife did not return the child, the Oakland Court, found her to be in contempt. Then the respondent moved application on 11.11.2009 to set aside the ex parte order. The same was dismissed by the Oakland Court. She preferred an appeal against the said order before the appellate Court in the USA. The respondent then filed criminal case against the petitioner on the file of VI Town Police Station, Nellore. She also filed Domestic Violence Case against the petitioner on the file of V Additional Judicial Magistrate of First Class, Nellore. The said Court granted temporary custody of the child to her with a direction to the police to ensure its implementation. Then the petitioner moved this Court seeking Writ of Habeas Corpus directing the respondent to produce the child before the Court and then again before the Oakland Court.

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In such facts situation, this Court felt that two options – (1) on the principle of ‘comity of Courts’, the person having the custody of the minor should be directed to produce before the foreign Court if the child is a citizen of foreign country, to be subjected to “family and child custody law” of that nation and; (2) exercise of ‘parens patriae’ jurisdiction, and which event, the consideration would be “paramount interest” or “best interest” of the child. This Court further felt that if a child born to Indian parents in a foreign nation is removed from the jurisdiction of the foreign Courts, after commencement of matrimonial

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dispute for divorce and child custody, the Court may insist upon the spouses to respect orders because in such case, the ‘parens patrie’ jurisdiction is deemed to have been exercised by the foreign Court. But if either of the spouses came to India before commencement of matrimonial proceedings and the adversarial spouse obtains ad interim child custody order at later point of time, “paramount or best interest test” must guide Indian Courts in resolving the issue.

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As in the said case, the petitioner obtained child custody order from Oakland Court after the child was moved to India, the Court considered the “paramount interest” or “best interest” of the child. As the child was two and a half years and was residing with her mother and grandparents since March, 2009 and as the petitioner was living alone in the USA, felt that the best interest of child would be served only if she is allowed to stay with the respondent, and therefore, refused to issue Writ of Habeas Corpus. However, having referred to the judgment of the Apex Court in Dr. V. Ram Chandran v. Union of India & Ors., with approval, and respecting the principle “comity of Courts”, directed the respondent that in the event she loses in the appellate Court in the USA, she has to take the child to the USA and produce the child before the Oakland Court.

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Unlike the facts appearing in the cases relied on by the petitioner, the facts of the instant case are different. In the instant case, the whereabouts of the two minor children, one who is born in India and the other, who is born in Dubai, is known to the petitioner, and it is her case that they are living with her husband at Dubai. No proceedings are initiated by either of the parties for custody of the children. According to the own admission of the petitioner, she returned to India as her visa was cancelled. Upon return to India, the petitioner except filing a case against respondent No.5 for the offence punishable under Section 498-A IPC, has not initiated any proceedings before the Family Court, seeking custody of the minor children. The rights of the petitioner to have custody of the minor children have to be adjudicated by the Family Court. It is also not her case that despite an order having been passed by the competent Family Court restraining respondent No.5 from moving the children out of India, he has moved them in violation of the Court orders. It is also not her case that her husband has forcibly taken away the children or has detained them illegally and that their whereabouts are not known. That being her case, no direction as prayed for by her in the writ

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petition can be granted. However, if the petitioner wants to have the custody of the minor children, she is at liberty to avail the remedies available to her under the custody laws, by initiating appropriate proceedings before the Family Court, but certainly she cannot be allowed to make use of writ jurisdiction, and seek writ of Habeas Corpus, to have the custody of her two minor children from the custody of her estranged husband, namely respondent No.5.

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There are no merits in the writ petition, and the same is accordingly dismissed. No costs.

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________________ N.V. RAMANA, J.

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_____________________ P. DURGA PRASAD, J.

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Dated: 22^nd February, 2012 KSR

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[1] 2009 (7) SCC 362

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[2] 2011 (2) ALT 259 (DB)