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2024 Supreme(Online)(GUJ) 25680
HIGH COURT OF GUJARAT
UMESH A. TRIVEDI, CHEEKATI MANAVENDRANATH ROY, JJ
CHINTANKUMAR ARVINDBHAI THAKKAR – Appellant
Versus
STATE OF GUJARAT – Respondent
R/SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 5059 of 2021
DR.ABHISST K THAKER(7010), MS RADHA A THAKER(11299), MR JAL UNWALA, SENIOR ADVOCATE ASSISTED BY MR KAUSHAL S JANI(7627), MR RAJ H JOBANPUTRA(10779), MS VRUNDA SHAH, ADDITIONAL PUBLIC PROSECUTOR
The welfare of the child is paramount in custody disputes, and initial legal custody cannot be deemed illegal based on subsequent foreign court orders.
Headnote:(A) Constitution of India - Article 226 - Writ of habeas corpus - Custody dispute involving minor child - Petition filed by father seeking return of child from mother to USA based on Florida Court order - Court emphasized welfare of child as paramount consideration - Child has developed roots in India since 2018, and father delayed action for custody - Court found no illegal detention by mother, as initial custody was legal - Petition rejected. (Paras 1, 5, 7.1, 7.2, 8)
(B) Jurisdiction - The jurisdiction of Indian courts in custody matters involving foreign orders is limited, and the welfare of the child must be prioritized over foreign court orders. (Paras 6.1, 7.4)
(C) Legal Principles - The welfare of the child is the primary consideration in custody disputes, and the initial legal custody cannot be deemed illegal based on subsequent foreign orders. (Paras 5.6, 7.8)
Facts of the case:
The petitioner, a father, sought a writ of habeas corpus for his son, an American citizen, who was allegedly wrongfully confined by the mother in India after being brought from the USA. The Florida Court had ordered the child's return to the father, but the mother contested the legality of the custody. (Paras 1-4)
Findings of Court:
The court found that the child had established roots in India and that the father's delay in seeking custody undermined his claim. The mother’s custody was deemed legal, and the petition was rejected. (Paras 7.1, 8)
Issues: The main issues included whether the mother’s custody was illegal and the impact of the Florida Court's order on the custody rights under Indian law. (Paras 6.1, 7.2)
Ratio Decidendi: The court ruled that the welfare of the child is paramount, and the initial custody with the mother was legal despite the Florida Court's order. The father's inaction contributed to the child's established roots in India. (Paras 7.2, 7.8)
Result: Petition rejected.
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)
1. This petition is filed under Article 226 of the Constitution of India praying to issue writ of habeas corpus directing respondents nos.2 and 3 to produce the corpus - minor Samarth – respondent no.5 herein before this Court, who is in wrongful confinement of respondent no.4 and further be pleased to permit him to accompany the petitioner to USA.
2. The aforesaid petition, as reflected from the case file, is afÏrmed at Florida, USA on 29.04.2021 by the petitioner, who happens to be the father of respondent no.5 whereas respondent no.4 is the mother of the corpus. The petitioner and respondent no.4 are husband and wife respectively married in the year 2015 and to be precise the marriage between them took place on 30.11.2015. Out of the wed-lock they are blessed with a son named Samarth born on 05.10.2017 at Florida, USA. The petitioner and respondent no.4 are Indian citizens whereas respondent no.5 –Samarth is American citizen by birth.
3. Hereinafter in this judgment, for the sake of convenience, the petitioner would be referred to as husband, respondent no.4 as wife and respondent no.5 as child.
4. As averred in the petition, the wife has illegally brought the minor child, who is a USA citizen, to India and thereafter has detained the child away from his father as also his habitual residence country i.e USA. As submitted by learned advocate for the petitioner, wife came back to India with the child on 05.06.2018, and therefore, the husband approached the Hon’ble Court at Florida, USA vide Case No.2019-DR-005035.
4.1 In support of parenting plan unconnected with dissolution of marriage with dependent or minor child e-filed on 28.10.2019, it appears to have been signed and afÏrmed on 23.10.2019. As averred in the petition and not disputed by the wife that a written response was filed to the said proceedings dated 20.12.2019.
4.2 As further averred in the petition, Circuit Judge of Florida Court passed final judgment dated 29.03.2021 into the proceedings filed by the husband ordering the child to be returned to the care and custody of the father in the United States at Florida and further ordered that the father is awarded his temporary exclusive time sharing with the child and the child shall remain with the father 100% of the time.
5. Heard Dr. Abhisst K. Thaker, learned advocate for the husband. He vehemently submitted that the child is American citizen, who is brought to India by the wife depriving the husband of the company of son. He has submitted that when the order was passed by the Florida Court holding that the child shall be returned to the care and custody of the father in United States, custody of the child was with the mother, who is also a natural guardian, and therefore, the custody of the child is disturbed by the order of the competent Court at Florida, and therefore, custody of the child can be said to be illegal with the wife. He has further submitted that in a writ of habeas corpus for custody of the child, paramount consideration is welfare of the child alone. Therefore, he has submitted that considering the welfare of the child, who is citizen of America by birth, if removed out of that country and brought to some new environment, it will affect not only his growth but surrounding environment as well. Therefore, it is further submitted that even if initial custody is legal, when it is disturbed by the competent Court at Florida in respect of its citizen, continued custody with the wife becomes illegal, and therefore, this writ of habeas corpus be entertained directing the child to be returned to USA with the husband.
5.1 Drawing attention of the Court to an order dated 01.04.2022 passed by this Court whereby interim custody of the child is ordered to be handed over to the father for a period of two months on certain conditions, it is submitted that for one or the other reasons, the said interim order entrusting the interim custody of the child for at l
