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2012 Supreme(AP) 442
High Court of Andhra Pradesh
V.V.S.RAO & G.KRISHNA MOHAN REDDY
Alekhya Yalamanchili
Versus
The State of A.P., through SHO, P.S., Jubilee Hills, Hyderabad & Others
WRIT PETITION No.27739 OF 2011
Decided On : 19-04-2012
For the Petitioner: S.Ravi, Senior Counsel.
For the Respondents: R3, C.Padmanabha Reddy, Senior Counsel.
Headnote:(A) CONSTITUTION OF INDIA, Article 226---Issuance of writ of Habeas Corpus in respect of a child who is now beyond the territorial jurisdiction of A.P.---Dispute before Family Court under Guardians and Wards Act is concerned with rights of parents for the custody of child---Proceeding of Habeas Corpus deals with protection of person who is held in unlawful custody---Even if the child is not within the territorial jurisdiction of the High Court, Court is entitled to assume jurisdiction if the parties had already approached the competent Family Court which is within the supervisory jurisdiction of High Court---Factum of relocation of a child beyond the territorial jurisdiction of High Court is not a ground to oust habeas corpus jurisdiction of Court. (Paras 19 and 25)
(B) HINDU MINORITY AND GUARDIANSHIP ACT, 1956, Section 6---Guardianship of child---Father cannot be ascribed to have a preferential right over the mother in the matter of guardianship of child since both fall within the same category. (Para 27)
(C)FAMILY COURTS ACT, 1984, Sections 7, 8 and 19---Guardians and Wards Act, 1890, Sections 7, 11 and 25---All matrimonial causes and guardianship and custody of minor children fall within the jurisdiction of Family Court---They are excluded from the jurisdiction of District Courts and Subordinate Civil Courts---Guardianship of minors hitherto exercised by District Court prior to enactment of Family Courts Act now inheres in Family Court. (Para 8)
V.V.S.Rao, J.
The petition is for Habeas Corpus directing respondents 1 and 2, namely, State of Andhra Pradesh through the Station House Officer, P.S., Jubilee Hills, Hyderabad, and the Director General of Police, Andhra Pradesh to trace the daughter of the petitioner Baby Sruthi, produce her before this Court and set her at liberty from wrongful custody from third respondent by giving custody to the petitioner.
2. The ensuing short facts are necessary to consider the issues raised by the parties. The petitioner, now citizen of the United States of America (USA) with Person of Indian Origin (PIO) status, married third respondent, a citizen of the USA with PIO status -on 05.05.2002 at Hindu Temple in Huston, the State of Texas. Sruthi was born on 18.11.2005 in California. After spending two years in the USA, the couple moved to India. For the birth of Baby Sruthi, the petitioner travelled to Huston and that is how Sruthi is a citizen of the USA.
3. The four year old marriage faced unrelenting turbulence. In December, 2009 the couple drew up a parenting plan which the petitioner alleges as vitiated by threats and fraud. The Family Court Commissioner (FCC), the Superior Court of Washington, King County passed orders on 03.04.2010 denying the motion of the third respondent to remove Sruthi from the USA. There was further order that Sruthi shall reside with the mother in Texas. It is also ordered further that if father returns from India, he shall have one week each month to keep the child with him. Three weeks thereafter petitioner and third respondent obtained divorce by mutual consent in USA on 23.04.2010. On the same day, the King County Court considered the motion by third respondent for determination of the jurisdiction and enforcement of the parenting plan. While vacating FCC’s order, the Superior Court validated the parenting plan. On the same day, yet another order of child support was passed by the Superior Court mandating the petitioner to pay $ 725.70 per month and defray transportation expenses for Sruthi’s travel, for visitation purposes.
4. The petitioner appealed against the Order dated 23.04.2010. On 24.01.2011, the Court of Appeals of the State of Washington reversed and remanded holding that the King County Superior Court lacked subject matter jurisdiction to validate the parenting plan because Baby Sruthi’s home State is India. Consequent thereto on 15.04.2011, the Superior Court vacated the final parenting plan for lack of jurisdiction.
5. After making their attempts in the Courts in the USA, the parties came to India. The third respondent filed O.P.No.295 of 2010 on 12.03.2010 before the Family Court, Hyderabad, under Sections 7 and 11 of the Guardians and Wards Act, 1890 (the Guardians Act, for brevity) for permanent custody of his daughter. Some time thereafter, the third respondent went to Bali, Indonesia. In September, he moved a Memo (SR) No.5150 of 2011 seeking permission to withdraw the OP. He contended that during the pendency of the OP., the child custody proceedings initiated by him in the USA Court ended in his favour and therefore, relief prayed before the Family Court became infructuous. The petitioner opposed the said move to withdraw the OP. Overruling the petitioner, the Family Court permitted the third respondent to withdraw the OP. The petitioner then filed O.P.No.1148 of 2011 under Sections 7 and 25 of the Guardians Act read with Section 7 of the Family Courts Act, 1984 for permanent custody of Sruthi as also permission to take her to the USA. The petitioner also moved an application being I.A.No.726 of 2011 to prevent third respondent from taking Sruthi outside the jurisdiction of Hyderabad. The Family Court granted an ex parte order on 12.09.2011. The petitioner made enquiries at Oakridge International School (OIS) and found that her daughter stopped School. After making efforts to trace Sruthi and attributing the connivance of respondents 4 to 8 with the third respondent in p
