IMPORTANT PONT
Foreign Judgment - Conclusiveness - Foreign Judgment based upon fraud & procured by trickery; is opposed to natural justice and does not pass the prescribed test of conclusiveness.

Virender Singh, J.

1. Through the instant writ petition under Article 226 of the Constitution of India, the petitioner is seeking directions in the nature of habeas corpus, directing release of Haralekh Singh Khosa (aged 5 years) and Mehak Kaur Khosa (aged 3 years), son and daughter of the petitioner from alleged illegal detention by respondent No. 1.

2. The case set up by the petitioner is that originally he hails from village Tumber Bhan, District Ferozepur and had migrated to Malaysia in the year 1957. Since the petitioner at present is residing in village Tumber Bhan, District Ferozepur, he, therefore, is entitled to invoke the jurisdiction of this Court. As per the averments in the petition, the petitioner got married to respondent No. 1 at Chandigarh on 1.3.1998 per Sikh rites. After the marriage, both proceeded to Kuala Lumpur, Malaysia, on 27.3.1998. From their wedlock, son Haralek Singh Khosa was born on 21.6.1999 and daughter Mehak Khosa on 18.6.2001. Since births both the children were registered with the Registrar of Births, Malaysia and, therefore, they are Malaysia citizens. In support of this assertion, the petitioner relies on Annexures P-1 and P-2, respectively. It is then asserted that respondent No. 1 was working as a Doctor in Government Hospital in Malaysia. It is further averred that on 4.2.2004, without informing the petitioner or anyone else, she left the matrimonial home along with her aforesaid two children and came to India. She did not even inform her employer. She had also brought jewellery articles and other valuable items with her. It is then asserted that the petitioner made certain inquiries and came to know that respondent No. 1 had taken a Malaysian Airlines Flight to New Delhi after getting visas issued in favour of all the three. According to the petitioner, even this was against the rules as the petitioner being the father of the children could only apply for issue of visas of the children. The petitioner, however, tried to contact respondent No. 1 but when he got no response from her, he applied for the custody of the aforesaid minor children in Malaysian Court being their natural guardian. Vide order dated 1.4.2004 (Annexure P-3) the High Court of Malaya at Kuala Lumper held that the petitioner was entitled to the legal guardianship of the aforesaid two minor children. The said order is endorsed by the Ministry of Foreign Affairs, Malaysia. The petitioner then asserts that his father came to India and moved an application (Annexure P-4) to Senior Superintendent of Police, Bhatinda (respondent No. 2) seeking his help for implementation of the said order. Another application (Annexure P-5) was also moved by the petitioner himself when he came to Indian and despite all efforts, respondent No. 1 had not handed over the custody of the minor children to him. The other grouse of the petitioner is that respondent No. 1 is not even allowing him to meet his two minor children. Hence, the instant petition.

3. Pursuant to the notice, respondent No. 1 has filed a detailed reply, controverting all the assertions, stating that Mehak Khosa was born in California (USA) as per birth certificate (Annexure R-1) and, therefore, she was an American citizen who had got issued a valid passport in her favour. It is then stated that SHO of the concerned Police Station on asking of the father of the petitioner, had even illegally confined Tier brother for two days, for which she was constrained to file Cr.W.P. No. 514 of 2004, in which notice of motion was issued to the Senior Superintendent of Police, Bhatinda, SHO Police station Rampura Phul and Inder Singh, father of the petitioner. She then asserts that ex-parte order (Annexure P-3) obtained by the petitioner in his favour is based on wrong facts, so much so, even wrong address of the respondent No. 1 was given by the petitioner for certain ulterior motives, knowing very well that she had left for India along with the children after obtaining valid vis