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IN THE HIGH COURT OF KARNATAKA
Alok Aradhe, S. Vishwajith Shetty, JJ.
Sameer Hamsa Ramla - Appellant
Versus
State of Karnataka & Ors. - Respondents
Writ Petition Habeas Corpus No. 78 of 2021
Decided On : 12-04-2022
Habeas Corpus - Custody Dispute - Guardian and Wards Act, 1890, Code of Criminal Procedure, Muslim Personal Law - [HABEAS CORPUS] - [CUSTODY DISPUTE] - [Guardian and Wards Act, 1890, Section 125 of the Code of Criminal Procedure, Muslim Personal Law] - The court discussed the custody dispute over a minor child between the parents, considering the orders passed by the U.S. and Indian courts. The court emphasized the legal principles related to the custody of a minor child, including the presumption of lawful custody with the mother, the welfare of the child as the paramount consideration, and the limitations of using habeas corpus for enforcement of foreign court orders.
Fact of the Case:
The husband filed a petition seeking the return of his minor daughter to the U.S. from India, following a custody dispute with his wife. The wife had invoked the jurisdiction of the U.S. court and obtained an emergency protection order, after which she traveled to India with the daughter. The husband sought the daughter's repatriation based on an ex parte order from the U.S. court.
Finding of the Court:
The court found that the daughter's custody with the mother in India was not illegal, and the remedy of habeas corpus could not be used to enforce an ex parte order from a foreign court. The court emphasized the best interest of the child, the mother's lawful custody presumption, and the lack of exceptional circumstances for repatriation.
Issues: The main issue was the custody and repatriation of the minor daughter, considering the orders from the U.S. and Indian courts, and the legal principles governing custody disputes.
Ratio Decidendi: The court held that the custody of a minor child with the mother is presumed lawful, and the remedy of habeas corpus cannot be used to enforce foreign court orders. The welfare of the child is of paramount consideration, and repatriation should only occur in exceptional circumstances.
Final Decision: The petition seeking the daughter's repatriation to the U.S. was dismissed, as the court found no merit in the husband's claim and emphasized the best interest of the child and the lack of exceptional circumstances for repatriation.
JUDGMENT
alok aradhe, J. - This petition has been filed by the petitioner seeking the following reliefs:
Issue a writ of order or direction more particularly one in the nature of writ of habeas corpus directing the respondent No.1 and 2 Police authorities to produce the minor daughter Zoya Sameer Malike (DOB 10.07.2018) of the petitioner, who is a permanent resident and a naturalized citizen of the USa before this Hon'ble Court, who is at present in the unlawful custody of respondent Nos.3 - 5, and cause return of the said minor child Zoya Sameer Malike to the jurisdiction of the US court in compliance with the order dated 28.06.2021 passed by the Circuit Court of Cook County, Illinois, Country Department to enable the minor child to go back to US and if they fail to do so within a fixed time period, respondent No.1 and 2 be directed to immediately handover the custody of the said minor child of the petitioner to enable him to take the minor child back to the jurisdiction of US Court and pass such other order or orders as this Hon'ble Court may deem fit and proper in the interest of justice.
2. Facts giving rise to filing of this petition briefly stated are that the petitioner (hereinafter referred to as 'the husband' for short) and respondent No.3 (hereinafter referred to as 'the wife' for short) got married on 25.09.2016. On 07.12.2016, wife went to U.S. to start her life with husband. On 10.07.2018, a daughter namely Zoya Salim Malike (hereinafter referred to as 'the daughter' for short) was born in Chicago. Thereafter, the wife applied for H1B visa on 07.04.2021. The wife made a complaint on 02.06.2021 to the police authorities in U.S and thereafter, on 03.06.2021 invoked the jurisdiction of the Court at U.S. and applied for an emergency protection order. The emergency protection order was granted on the same date i.e. 03.06.2021 and custody of the daughter was handed over to the wife.
3. The wife traveled along with the daughter to India on 20.06.2021. Thereafter, on 21.06.2021, the husband filed a motion for dissolution of marriage and sought custody of the daughter in U.S. Court. The aforesaid proceeding filed by the husband was consolidated with the proceeding initiated by the wife seeking emergency protection order and on 22.06.2021, the emergency protection order was extended till 28.06.2021. The husband, filed an emergency motion on 21.06.2021 for return of the daughter before the Circuit Court of Cook County, Illionis after having learnt that the wife had travelled to India along with the daughter. The said Court on 28.06.2021 passed an order directing repatriation of the daughter from India.
4. after an order of repatriation of the daughter was passed, the wife filed a petition under the Guardian and Wards act, 1890 seeking custody of the daughter in Bengaluru. Thereafter, a petition under Section 125 of the Code of Criminal Procedure seeking maintenance was also filed on 31.07.2021. The husband thereafter filed the instant petition on 04.09.2021 seeking the reliefs as stated supra.
5. Learned counsel for the petitioner submitted that the wife had studied in U.S. and had been working in U.S. as a Software Consultant. It is further submitted that wife on her volition and accord, on 07.12.2016 travelled to U.S. to start her life with the husband. It is also submitted that the wife is in the habit of running away with the minor daughter. It is urged that wife admittedly applied for H1B visa which evinces her intention to settle in U.S. It is also urged that the wife herself had invoked the jurisdiction of Court at U.S. and an order was passed in her favour. It is contended that the daughter is three and a half years old and is a U.S. citizen and the welfare of the daughter would be best served by directing her to return to U.S.
6. It is also submitted that the daughter needs the love and affection of the husband and wife. It is also contended that the husband is ready and willing to make a 3 bedroom accommodation to the wif
The custody of a minor child with the mother is presumed lawful, and the welfare of the child is the paramount consideration in custody disputes. The remedy of habeas corpus cannot be used to enforce....
The welfare of a minor child is of paramount importance, and custody should generally remain with the mother unless proven harmful, reaffirming the 'tender years rule.'
The welfare of the child is paramount in custody matters, allowing writ of habeas corpus to challenge unlawful detention in international contexts. Foreign court orders must yield if they conflict wi....
It does not connote place of origin or country in which minor has citizenship. It does not depend on duration of minor’s residence, but more on intention of person who has child’s lawful custody; whi....
The welfare of the child is paramount; unilateral decisions by one parent cannot deprive the child of the other's company or rights in their country of citizenship.
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