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2012 Supreme(Mad) 2128
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. MOHAN RAM & THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI
Jayanthi
Versus
The Commissioner of Police, Coimbatore & Others
Habeas Corpus Petition No.1696 of 2011 & M.P.No.1 of 2012
Decided on : 09-05-2012
the Petitioner:D. Ramalingam, Ms. Sudha Ramalingam, Advocates.
For the Respondents:R1 & R2 - A.N. Thambi Durai, A.P.P., (Crl. Side), R3 Om Sai Ram, Advocate.
The welfare of the child is of paramount importance in custody disputes, and the court must conduct an independent consideration of the child's welfare, taking into account the specific circumstances of the case.
Headnote:
HABEAS CORPUS PETITION - CUSTODY DISPUTE - FAMILY LAW - [HABEAS CORPUS PETITION] - [CUSTODY DISPUTE] - [Guardianship and Wards Act, 1890, Hindu Marriage Act, 1955] - The court discussed the violation of the consent order, the welfare of the child, and the conduct of the parties. The court held that the custody of the child with the third respondent was in violation of the Australian court's order and was prima facie illegal. The court directed the detenu to be set at liberty and handed over the custody to the mother, permitting her to take the child to Australia, subject to abiding by the orders of the Family Court, Coimbatore.
Fact of the Case:
The petitioner, an Indian citizen living in Singapore, filed a Habeas Corpus Petition seeking custody of her son, who was taken to India by the third respondent, her husband. The petitioner alleged that the third respondent violated the consent order of the Magistrate Court at Perth, Australia, and initiated divorce proceedings in India. The petitioner sought the return of her son from India, expressing concerns about his health and safety.
Finding of the Court:
The court found that the custody of the child with the third respondent was in violation of the Australian court's order and was prima facie illegal. The court held that the welfare of the child was of paramount importance and directed the detenu to be set at liberty and handed over the custody to the mother, permitting her to take the child to Australia, subject to abiding by the orders of the Family Court, Coimbatore.
Issues: The main issues revolved around the violation of the consent order, the welfare of the child, and the conduct of the parties, including allegations of illicit intimacy and racial discrimination.
Ratio Decidendi: The court considered the duty of a Court exercising its Parens Patraie jurisdiction, the welfare of the child as the paramount consideration, and the relevance of foreign court orders in custody disputes involving non-convention countries. The court emphasized the importance of an independent consideration of the welfare of the child and the need for an elaborate enquiry to decide custody issues.
Final Decision: The court directed the detenu to be set at liberty and handed over the custody to the mother, permitting her to take the child to Australia, subject to abiding by the orders of the Family Court, Coimbatore.
K.MohanRam, J.,
1. The petitioner is the legally wedded wife of the third respondent. The petitioner is an Indian Citizen, yet she had been living in Singapore since age 4. The petitioner had been a resident of Singapore from 1983. The marriage between the petitioner and the third respondent took place at Sirkali, Tamil Nadu, on 24.6.2011. The third respondent is an engineering graduate. After the marriage, the third respondent moved to Singapore and stayed with the petitioner and he got an employment at Singapore. The detenu P. Arjun was born on 14.6.2004 at Singapore. According to the petitioner, she and the third respondent did not have a smooth matrimonial life as the third respondent was dissatisfied with his job at Singapore and hence, he obtained a skilled migrant visa to Australia in 2008. Initially, the petitioner moved to Perth, Australia with the detenu P. Arjun in March 2010 and the detenu began his schooling at Perth. The petitioner began working as a Medical Scientist in Clinipath Pathology. The third respondent joined them at Perth in July 2010.
2. According to the petitioner, as the third respondent could not find a job at Perth, he began to show his frustration on the petitioner and the child and this led to a lot of arguments with the third respondent and he abused the petitioner on several occasions. On 21.8.2010, the third respondent pulled the detenu P. Arjun out of school without the consent of the petitioner and he booked air tickets for him and the detenu P. Arjun to go to India. Despite her earnest requests and pleadings, the third respondent took the detenu P. Arjun to India on 22.8.2010. After much coaxing and pleading, the third respondent brought back the detenu P. Arjun on 20.9.2010.
3. It is the further case of the petitioner that on 20.9.2010, the third respondent threatened to take P.Arjun to India and in such circumstances, the petitioner had to hide their passports. Infuriated on this, the third respondent verbally abused the petitioner and physically assaulted her in front of her son and demanded to return the passports. Left with no other option, she called the police for help and the police gave a 24 hour Violence Restraining Order (VRO) to the third respondent. The next day, the Magistrate's Court at Perth granted VRO to the petitioner and her son, which was later dismissed as the third respondent was not violent. Thereafter, the third respondent initiated proceedings in the Court at Perth for shared parental responsibility. Based on the compromise arrived at between the petitioner and the third respondent, the Magistrate Court at Perth, Australia passed final orders on 7.7.2011 granting shared parenting responsibility of the detenu P. Arjun and granted permanent custody of the detenu P.Arjun allowing him to stay with the petitioner at Perth. The orders contained a detailed schedule for the detenu P. Arjun to spend time with the third respondent. As per the Order, either parent could take the child P.Arjun outside Australia for a period upto three weeks for the purpose of a holiday after givng the other parent 21 days written notice. The travelling parent also has to provide a written itinerary and proof of return tickets to the other parent within 14 days of the departure and also deposit a sum of Aus $ 5000/- into the Trust account of the solicitors of the non-travelling parent within 14 days of departure. The travelling parent must also provide a mobile telephone number to the other parent to facilitate reasonable telephone communication with the child P. Arjun during overseas travel.
4. On 12.9.2011, the third respondent sent an email attaching the itinerary of his plan to travel to India with her son from 1.10.2011 to 8.10.2011 on a holiday. As per Clause 19 of the final order, dated 7.7.2011, the passport of the child P. Arjun was directed to be returned to the petitioner. Hence, the third respondent sought her help in obtaining the passport from the Registry since it r
