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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Amit Borkar, J.
Nadia Rashid – Appellant
Versus
Shehzad Hemani – Respondent
Writ Petition No. 5290 of 2022
Decided On : 19-01-2023
Abduction - Child Custody - Special Marriage Act, 1954 - Hague Convention of 1980 - [Abduction] - [Child Custody] - [Special Marriage Act, 1954, Section 25] - [Hague Convention of 1980, Civil Aspects of International Child Abduction, Article 3, Article 12] - The court discussed the relevance of the manner of abduction of the minor child, the conduct of the father, and the welfare of the child in the context of child custody proceedings. The court highlighted the observations and findings of the Court in Netherlands, the risk to the child's life during the unauthorized travel, and the moral and ethical values in determining the character of the father. The court concluded that the conduct of the father in abducting the minor child and possibly exposing her to life-threatening situations has a definite relevance to the character of the father and the welfare of the minor, and therefore, the impugned orders rejecting the applications for seeking documents and cross-examination were not justified.
Fact of the Case:
The petitioner, a mother, challenged orders passed by the Family Court related to the custody of her minor daughter who was abducted from the Netherlands to India by the respondent, the father. The court discussed the relevant facts surrounding the marriage, birth of the child, abduction, legal proceedings in the Netherlands, and the conduct of the father.
Finding of the Court:
The court found that the conduct of the father in abducting the minor child and possibly exposing her to life-threatening situations has a definite relevance to the character of the father and the welfare of the minor. The court concluded that the impugned orders rejecting the applications for seeking documents and cross-examination were not justified.
Issues: The issues included the welfare of the minor daughter, the entitlement to custody, and the declaration of legal guardianship of the minor daughter.
Ratio Decidendi: The court held that the conduct of the father in abducting the minor child and possibly exposing her to life-threatening situations has a definite relevance to the character of the father and the welfare of the minor, and therefore, the impugned orders rejecting the applications for seeking documents and cross-examination were not justified.
Final Decision: The court allowed both the petitions filed by the mother, ruling in her favor.
JUDGMENT
1. The petitioner/mother has filed Writ Petition No.5290 of 2022 challenging orders dtd. 1/3/2021 and 16/2/2022 passed by the learned Family Court, Mumbai below Exhibits 135 and 139 respectively in Petition No.D-40/2015. Petitioner filed application below Exhibit 135 seeking a relief that the observations made by the Family Court at page 100 and 112 that "there is no issue of removal of child wrongfully and illegally" be deleted/struck off and she be permitted to put questions to the petitioner concerning the facts surrounding how the child was brought to India on 29/9/2016. Petitioner application below Exhibit 139 seeking review of order dtd. 1/3/2021 rejecting application below Exhibit 133.
2. In Writ Petition No.11896 of 2019 the impugned order dtd. 10/10/2019 rejects request for production of documents as sought in paragraph 10(i), (ii) and (iii). The documents sought by the petitioner are as under:
(i) All pages of the passport of the Petitioner with all endorsements, visas etc. from 2005 till date;
(ii) All documents, including travel tickets, Indian VISA, official exit/emigration endorsement/stamp from the authorities of the Netherlands/exit point in EU on Insiya's travel documents, official entry/immigration endorsement/ stamp from the authorities of India at the exit point into India on Insiya's travel documents, showing the travel of Insiya from the Netherlands to India in September 2016; and
(iii) Documents to show the legality of Insiya's stay in India from September 2016 till date, including an Indian VISA.
3. The main reason which weighed with the trial Court for rejection of applications filed by the mother is that production of documents or questions asked in cross-examination as regards method of abduction of minor child from foreign country by adopting illegal means is not relevant for deciding the issues framed in the context custody of child proceedings.
4. The facts, as stated in the petition, relevant for adjudicating the said issues are stated as follows.
5. On 29/4/2011 the petitioner and respondent got married under the Special Marriage Act, 1954. On 6/3/2014 daughter, Insiya was born in Amsterdam, Netherlands. She got citizenship of Netherlands by birth. In December 2014 petitioner/ mother along with daughter returned to Amsterdam. On 6/4/2015 Insiya's Indian visa expired. On 23/4/2015, petitioner filed an application seeking custody of minor daughter Insiya before the Noord Holland District Court, Netherlands. The respondent/father participated in the said proceedings and contested the same by filing reply. The father filed abduction case before the Hague District Court for custody of Insiya, which was rejected by order dtd. 6/7/2015. The said decision was confirmed by the Court of Appeals on 9/8/2015.
6. On 16/10/2015 father filed access application before the Noord-Holland District Court which permitted parental access to him and further directed him to hand over Insiya's passport to the petitioner/mother within five (5) days from 16/10/2015. He failed to hand-over Insiya's passport as directed. On 1/3/2016 the Noord-Holland District Court granted interim custody of Insiya to the petitioner/mother.
7. On 29/9/2016 Insiya was abducted from the custody of petitioner/mother at the behest of father from her parents' home in Netherlands. Case of abduction was registered by police. One kidnapper was arrested at the scene, two escaped with minor child Insiya. She was transported across the border to Germany and was thereafter brought to India.
8. On 10/11/2016, respondent/father filed an application before the Family Court seeking extension of custody of Insiya stating her to be in his custody from 29/9/2016. On 20/12/2016 Insiya's passport was deposited with the Department of Civil Affairs of Municipality of Haarlemmermeer.
9. The Family Court framed issues in relation to custody and guardianship of minor daughter. The issues are as under:
"1. Does the petitioner prove that the welfare of the minor daughte
AI
The welfare of the child is the paramount consideration in determining custody, as highlighted by the provisions of the Hindu Minority and Guardianship Act, 1956, and the Foreign Court's order.
Indian courts can enforce foreign parenting orders for child custody, prioritizing the child's welfare and establishing illegitimacy of custody if it violates those orders.
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....
Parental abduction undermines custody orders; courts prioritize the child's welfare over legal contingencies.
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