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2006 Supreme(Bom) 314
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(PANAJI BENCH)
R.M.S. KHANDEPARKAR & N.A. BRITTO, JJ.
Mrs. Mandy Jane Collins - Petitioner
Versus
Mr. James Michael Collins & Anr. - Respondent
Criminal Writ Petition No.34 of 2005
Decided on 3rd March, 2006.
Shri. ANIL MALHOTRA, for the Petitioner.
Sarvasri M.S. USGAONKAR, Sr. Advocate, with S.G. BHOBE for the Respondent No.1.
Shri. S. N. SARDESSAI, Public Prosecutor, for the Respondent No.2.
Headnote:CONSTITUTION OF INDIA, 1950 - Articles 21 and 226 Custody of girl child Foreign citizen decided to settle at Goa Child with father Not a case where child is not happy Mother wants to take child to England for better education Child found to be happy Accessible by mother also Parties directed to approach civil Court. Perusal of the facts narrated in the petition coupled with the statements of facts brought on record in-reply and revealed from the documentary evidence on record, it is prima facie clear that there is nothing to suggest that the child Ella is residing with her father on account of some forcible act on the part of the respondent or that it was even without the consent or knowledge of the petitioner. Even Ella’s joining of school of Goa prima facie appears to be with the knowledge and tacit consent of the petitioner. Prima facie it appears that certain circumstances which created rift between the spouses have led for the controversy in the matter and it being used not in the interest of the child but rather ignoring her best interest. Taking into consideration various facts brought on record and as they stand today, it would be difficult to accept the contention of the petitioner that there is a case for disturbing the residence of the child with the respondent. Besides, the educational year is also from June to April of the succeeding year. At this stage, any change in the residential place of the child would also disturb the education al process for the child. Taking into consideration the decision of the Apex Court in Dr. Mrs. Veena Kapoor ’s case, AIR 1982 SC 792 (supra ) and further that the matter involves disputed questions of fact which are required to be established by evidence, it would be in the interest of the child to relegate the parties to normal civil proceedings for the decision on the point of custody of the child, without disturbing the prevailing situation.
Court had interviewed the child in the chamber, firstly in the presence of her parents and their Advocates and thereafter in their absence. The child appears healthy and she seems to be happy to continue to reside with her father and she enjoys all the necessary amenities, care and protection from her father and at the same time she has lot of respect and love for both the parents. It is also revealed from the interview that the mother i.e. the petitioner has been occasionally visiting the child at her residence.
In the facts and circumstances of the case, there being no satisfactory material placed to arrive at the conclusion of illegal detention or unlawful custody of the child by the respondent in respect of Ella and there being no sufficient material placed before us to justify disturbance of the status quo, bearing in mind the best interest of the child, it would be appropriate not to disturb the present situation in relation to the minor child and, therefore, leaving the parties to pursue civil remedy if they so desire, the petition deserves to be dismissed and is accordingly dismissed, with no order as to costs.
2. It is the case of the petitioner that the petitioner is a permanent resident of Ireland and a British citizen holding a permanent passport of the United Kingdom. She arrived in India on 18-9-2005 specifically to seek the custody, care and control of her minor daughter Ella, who is aged about 8 years and who is presently at House No.1784, Mazalvaddo, Anjuna, Bardez, Goa, with her father. The petitioner was married to the respondent No.1 on 6-6-1996 and Ella was born on 5-7-1997 in England and she is also a British national. The respondent No.1 is from the United States of America. It is her further case that Ella started her preliminary education at Coars National School in Ireland. The petitioner is employed as an English teacher and is a permanent resident of Ireland. The respondent No.1 owned a house in Washington State where he used to reside and had his business in Seattle, U.S.A. However, as of now he is not pursuing any business activity and presently is living in Goa in the said house referred to above. It is her further case that consequent to the marriage they stayed for different period of times in the U.S.A. and the U.K., besides spending some time in India and other countries for holidays. However, due to irreconcilable differences, they parted company of each other in November, 2000, but have not yet obtained any divorce decree to dissolve their marriage. After Ella attended her school in Ireland in June, 2004, there were vacations in the months of July and August and during those holidays, the respondent No.1 took Ella to Switzerland and from there to India in September, 2004. Initially, the respondent No.1 took Ella to a Dharmashala in Himachal Pradesh and then in November, 2004 the respondent No.1 brought Ella to Goa. Towards the end of November, 2004 he got Ella admitted to Mater Dei Educational Institution at Saligao, Goa, in IInd standard and after the break in April-June, 2005, Ella was detained in the same standard. It is her grievance that inspite of persistent efforts on her part, the respondent No.1 refused to return Ella to Ireland. The petitioner has been aiming and working to see all along that Ella should continue her education in Ireland. Presently, the child has lost considerable weight and does not enjoy some of the medical facilities which would be available to her in Ireland. She does not have the emotional and mental support of her mother which is necessary for upbringing an eight year old child. Besides that, Ella is not in her natural surrounding. All the efforts' to negotiate with the respondent No.1, even with the intervention of strangers and friends, have failed. It is her case that the climate, environment, surrounding, family support, mother's love, affection, schooling and all the other necessary ingredients are available only in Ireland and the respondent No.1 has U.S. Passport of Elia on which he brought her to India and which is also in his custody. The petitioner is the best person to look after and maintain the child of 8 years in Ireland and the welfare of the minor being of paramount consideration, the child's custody should be given to the petitioner. The petitioner is also a well-qualified teacher and leads a stable life in Ireland. The respondent No.1 is over 62 years of age and living alone and cannot provide the necessary care for an 8 year old girl. In the interest of justice, therefore, the custody of the minor girl should be ordered to be given to the petitioner, along with her passport which is in the custody of the respondent No.1.
3. On the other hand, while raising preliminary issue regarding the non-maintainability of the writ petition in the nature of habeas corpus
