IMPORTANT POINT
Where grand parents were granted custody of minor children by Family Court in India, petitioner mother could not claim custody of children on basis of order obtained from U.S.A. for custody of minor children.

ORDER

In this petition under Article 32 of the Constitution of India, the petitioner primarily seeks a writ in the nature of habeas corpus directing respondent Nos. 2 and 4 to produce her minor children and hand-over the custody of the said minor children to the petitioner along with their passports and travel documents. The petition is based on the fact that the petitioner is the natural mother and de facto guardian of the minor children and that her husband is serving a jail-term in the United States of America, and that she has obtained an order of the competent court in the USA for the custody of the minor children, therefore, their custody with the second respondent is an illegal custody, consequently she is entitled to the relief prayed for by her in the above petition.

2. Respondent No. 4 who is the paternal grand-mother of the children in question, has filed a counter and has brought to our notice that the children in question are in her custody by virtue of an order made by a competent Family Court at Nagpur in a petition filed by her son to which petition the writ petitioner was a party, and though the said writ-petitioner has challenged the said order of the Family Court in appeal before the High Court of Bombay, Nagpur Bench, she withdrew the same, hence, the said order of the Family Court granting custody to her has become final so the custody of the children with her was not in any manner illegal, consequently the petition in the nature of habeas corpus is not maintainable. She also contended that the Family Court while granting the custody of the minor children to her has taken note of the order made by the court in the USA in regard to custody of the children which order the Family Court had held to be one without jurisdiction and not a decree, notice of which can be taken by Indian courts under section 13 of the CPC.

3. We have heard the arguments of the learned counsel for the parties and are in agreement with the submissions made on behalf of respondent No. 4. The custody of the minor children having been awarded to the 4th respondent by a competent court, cannot be said to be an illegal custody, unless and until the petitioner gets that order set aside. Therefore, in our opinion, the petitioner cannot seek relief in this habeas corpus petition.

4. Learned counsel for the petitioner, however, submitted that the petitioner will take necessary steps to either get the order of the Family Court set aside or modified but till such time she should be given the custody of the children since she has come all the way from the United States to be with them. He submitted that the writ petitioner-mother is a holder of post-graduate degree in English literature and has undergone training in child psychology. He also submitted that in Nagpur, she resides with her family and her brother is the Manager of a School, therefore, she is qualified to look after the children better than the 4th respondent who is now aged over 80 years and does not have the necessary help to look after these children. This argument of the learned counsel for the petitioner is rebutted by the learned counsel appearing for the 4th respondent who contends that eversince the order of the Family Court, the children are in the custody of the grandmother without there being any complaint of their welfare being in any manner either ignored or jeopardised. He also submitted that the petitioner who has since remarried has a child from her second wedlock and she having nor challenged the order of the Family Court, cannot in the guise of this habeas corpus petition, seek interim custody of the children.

5. We are aware that having held that the petition in question is not maintainable, we cannot grant the custody of the children to the petitioner even though she is their mother. However, to do complete justice, we can pass such orders which is appropriate in the facts of the case as also in the interest and welfare of the minor children. Learned counsel for the 4t