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IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. VINOD CHANDRAN, M.R. ANITHA, JJ.
Rajkumar Sasidharan, S/o. Late K. Sasidharan - Petitioner
Versus
The Superintendent of Police, East Fort Police Station, Trivandrum & Ors. - Respondents
W.P.(Crl) No. 18 of 2020
Decided On : 21-01-2021
Guardians and Wards Act, 1819 - Section 9 - Protection of Women from Domestic Violence Act, 2005 - Applications for divorce and custody and appointment of guardianship of minor - Jurisdiction of family court - Challenged - Visitation rights - Whether minor, being a US citizen has to be subjected only to jurisdiction of Courts in that country - Father on principle of comity of courts seeks a Writ of Habeas Corpus for production of minor child from alleged illegal custody of mother, to facilitate repatriation to his own country subject to further orders from the foreign Court which has issued a Writ of Habeas Corpus Petitioner and respondent married in year 2013, first lived as a couple at Bangalore and moved to USA in 2014 - In USA petitioner was working and the respondent a house wife; allegedly due to petitioner being not in favour of a working wife-While petitioner asserts that there was no complaint lodged against him by the respondent in USA respondent has detailed her travails both at Bangalore, where they resided immediately after marriage and in USA - From 2014 parties were in America and though they have applied for permanent residence it has not been obtained - They remain Indian Citizens but their son by virtue of his birth, acquired citizenship of USA - Mother and child proceeded to India in January of 2018 and did not return - Wife initiated proceedings in India for divorce and guardianship before Family Court, which is challenged as lacking jurisdiction, for reason of citizenship of child and Section 9 of G&W Act.
Finding of the Court:
Petitioner, being aware of respondent having decided to stay back in India with child, did nothing to get back child or attempt to resolve apparent marital discords - Petitioner was also aware of order passed against him under Act, 2005 - The welfare of child is not inextricably connected to social milieu in US to find Superior Court of California to have intimate contact with circumstances in which child was brought up - Child was in a nuclear family in company of his father and mother. As of now, three years have elapsed after his coming to India and infant has of his surroundings, his peers and elders - As has been directed in Nithya Anand Raahavan expenses of travel and stay of the mother and child in foreign country will be met by petitioner; only if foreign Court requires their presence after being apprised of entire facts. As for visitation rights to father, we leave it to be agitated before the Family Court, Thiruvananthapuram - Petitioner will do well to enter appearance before Family Court, wherein an enquiry has to be held to look at the rival contentions and arrive at a finding on custody of minor child; keeping in mind that in deciding custody of minors the aspect of the welfare of the child is predominant, paramount and foremost.
Result: Writ petition dismissed.
JUDGMENT :
Vinod Chandran, J.
Marital discords are more challenging to the offspring, who are not even represented, especially when questions of custody arise. Hence the Hon'ble Supreme Court has, oftener than ever emphasized the onerous duty cast on the Courts, exercising parens patriae jurisdiction, to keep in mind the profound and dominant aspect of the welfare of the minor. We would have normally not entertained the Habeas Corpus petition, but for the peculiar facts arising herein where the child born to Indian parents, is an American citizen, by virtue of his birth in that country. The parents were residing in that country when the mother along with the child travelled to her native place and took a conscious decision not to return. The mother settling down in her parental house, approached the local Family Court for divorce and guardianship of the minor child. The father, much later, approached the Superior Court of California and obtained an order against the mother commanding her to produce the child illegally detained by her. The father after two years approached this Court with this petition inter alia challenging the jurisdiction of the Family Court at Thiruvananthapuram, wherein the applications for divorce and guardianship were filed. The father on the principle of comity of courts seeks a Writ of Habeas Corpus for the production of the minor child from the alleged illegal custody of the mother, to facilitate repatriation to his own country subject to further orders from the foreign Court which has issued a Writ of Habeas Corpus as available at Ext.P14.
2. Learned Counsel for the petitioner, father of the child, contends that the Family Court, Thiruvananthapuram does not have jurisdiction to entertain the application filed for determination of guardianship under the Guardians and Wards Act, 1819 (for brevity 'G&W Act'). Section 9 of the G&W Act confers jurisdiction on the District Court, now a Family Court, in respect of guardianship of a minor, having jurisdiction in the place where the minor ordinarily resides. It cannot be said that the minor herein, an American citizen is a resident of Thiruvananthapuram. The child had been taken away from his natural habitat and within a month of his arrival in this country, that too his first entry, the mother approached the Family Court at Thiruvananthapuram where her parents are residing. To advance the above proposition the learned Counsel relies on 1981 (4) SCC 517 (Jeewanti Pandey vs. Kishan Chandra Pandey). In similar circumstances, the Hon'ble Supreme Court in Lahari Sakhamuri vs. Sobhan Kodali AIR 2019 SC 2881 held that the minor children who were taken away from the foreign country by the mother cannot be said to be ordinary residents of Hyderabad wherein the mother, after coming to India, set up her residence.
3. Shilpa Aggarwal vs. Aviral Mittal (2010 (1) SCC 591) again was a case in which the couple on their volition set up their matrimonial home in the foreign country from where one of the spouses stealthily brought the child back to India. The High Court as also the Supreme Court concurrently found in favour of repatriation and custody of the child being subjected to the jurisdictional Court in the foreign country. A host of other decisions were cited at the Bar with special emphasis on Yashitha Sahu vs. State of Rajasthan (C.A. No. 127/2020 dated 20.01.2020) and Neelanjan Bhatacharya vs. State of Karnataka (2020 SCC Online SC 928). It was argued that the respondent mother had subjected herself to the jurisdiction of the foreign Court; nay invoked its jurisdiction insofar as the claim raised for maintenance in proportion to the income of the petitioner.
4. The learned Counsel for the petitioner vehemently urged that the allegation of torture as raised in the counter affidavit is unsubstantiated. No single complaint has been lodged against the petitioner by the respondent in America, where it is asserted, punitive action of the State is immediate and rigorous as agai
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