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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ALOK ARADHE, VIJAYKUMAR A. PATIL, JJ.
Sankar Viswanathan S/o Viswanathan Raja – Petitioner
Versus
State of Karnataka – Respondent
W.P. No. 46 of 2022
Decided On : 09-03-2023
Guardians and Wards Act, 1890 - Section 6 - Commission for Protection of Child Rights Act, 2005 - Section 2(2) – Constitution of India, 1950 - Article 35 - Custody of minor son - Declare as natural guardian - Issue a writ directing respondent No. 1 to produce Master Siddharth Sankar before Hon’ble Court and to ensure that physical custody of minor son is transferred to petitioner and child is repatriated to his habitual palace of residence – No material, which is convincing or persuasive enough has been produced by petitioner for grant of relief - Para 15.
Finding of the Court: Remedy of writ of habeas corpus cannot be used for enforcement of an ex-parte order passed by German Court, which was not in existence at time when son left Germany - No exceptional circumstances are made out by husband to demonstrate that son should be repatriated to Germany and in case, son continues to stay with wife in Bangalore, it would not be in interest of son - No material, which is convincing or persuasive enough has been produced by petitioner for grant of relief - It is pertinent to note that petitioner has not sought custody of son but is merely seeking repatriation of son to Germany - Ordinarily, bearing in mind that it is in best interest of child to have parental care of both parents, Court would have granted visitation rights - However, issue with regard to grant of visitation rights is pending adjudication before Family court, wherein several orders have been passed in favour of petitioner - In Court opinion in best interest of son, he should be allowed to stay with wife in India till issue pertaining to custody of son in a proceeding under Guardian And Wards Act, 1890 is adjudicated.
Result: Petition dismissed.
ORDER :
1. This writ petition has been filed by the petitioner seeking the following relief:
2. Facts giving rise to filing of this writ petition briefly stated are that the petitioner as well as respondent No. 2 (hereinafter referred to as the wife) got married on 07.10.2013 at Bangalore, Karnataka. The wife joined the matrimonial home in Germany. Thereafter, on 21.10.2016 a child viz. Master Siddharth Sankar (hereinafter referred to as the son) was born in Germany. It appears that on account of matrimonial dispute, the wife left Germany on 16.05.2017 along with the son. The petitioner thereupon filed a petition on 17.05.2017 before the jurisdictional court in Germany seeking custody of the son. However, by the time i.e. 17.05.2007, an order was passed by the jurisdictional court in Germany granting custody to the petitioner and directing that the son will not be taken out of the borders of the Germany, the wife had already landed in India with the son.
3. The petitioner thereafter on 01.06.2017 preferred a petition in Germany for return of the son on the ground that wife is staying in India in contravention of the order dated 17.05.2017 passed by the German Court and that the visa of the child was due to expire in two months and therefore, it was necessary for the child to return to Germany. However, the wife on 01.06.2017 bought the child’s evisa converted into stay visa by Foreigners Regional Registration Officer (FRRO), Bangalore.
4. The wife thereafter filed a petition on 07.06.2017 seeking dissolution of marriage as well as permanent alimony of Rs. 4 Crores and permanent custody of the son. Thereafter, she filed a petition under Section 6 of the Guardians and Wards Act, 1890 (hereinafter referred to as ‘the Act’ for short) on 13.06.2017 and sought a declaration that she be declared as natural guardian of the son and be permitted to continue to have custody of the son.
5. Thereafter wife entered appearance in German court on 07.11.2017 and the petitioner as well as the wife agreed that the petitioner shall pursue the dispute with regard to custody of the son in India. The petitioner further agreed that in case, wife returns to Germany, the abduction charges against her would be dropped. The petitioner thereafter, filed petitions from 13.11.2017 till 28.01.2019 seeking visitation rights. The petitioner thereafter, has filed this petition on or about 27.05.2022 seeking the writ of habeas corpus.
6. Learned counsel for the petitioner submitted that the issue, whether the child brought unilaterally by one parent from his native country to another country should be directed to be returned to his native country has to be decided, keeping in view the best interest of the child. It is argued that the wife brought the son to India without obtaining the consent of the petitioner. It is further submitted that petition under the Act was filed on 13.06.2017, by conceding the fact that son is a German citizen as well as the fact that jurisdictional court at Germany had passed an order on 17.05.2017. It is contended that the child’s upbringing will be better in the German system as the son is a German citizen.
7. It is argued that as per United Nations Conventions on Human Rights (UNCRC), the minor child should return to Germany. It is pointed out that under Section 2(2) of Commission for Protection of Child Rights Act, 2005, all the rights of children in UNCRC are incorporated in Indian Domestic Law and the Indian Courts can apply international treaty obligations to domestic cases. It is further pointed out that wife has indulged in forum shopping and getting funded for her litigation in Germany. It is also po
Writ of habeas corpus is a prerogative writ and is an extraordinary remedy.
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 in custody matters, allowing writ of habeas corpus to challenge unlawful detention in international contexts. Foreign court orders must yield if they conflict wi....
The welfare of the child is of paramount importance in determining custody. The court must consider all the attending circumstances and the totality of the situation on a case-by-case basis. Ex-parte....
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 the paramount consideration in custody disputes, overriding jurisdictional claims based on temporary residence or citizenship.
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