'Atrocious, Violates Human Rights' : Supreme Court Questions Foreign Court's Order Imposing Travel Ban On Minor Child

The Supreme Court yesterday expressed strong disapproval of a foreign Court order which imposed a travel ban on a child whose parents were involved in a matrimonial dispute, saying that such orders are "atrocious", violative of human rights and amount to house arrest.

A bench of Justices Kant and N Kotiswar Singh was dealing with a habeas corpus matter, where the petitioner-father sought custody of his son, alleging that his ex-wife took the child from the family's Dubai residence without his knowledge. Statedly, he had obtained an order from a Dubai court imposing a travel ban on the son.

Taking exception to the order, Justice Surya Kant told the petitioner's counsel :

"[It was a case] where she (wife) was virtually being kept in solitary confinement, then you secured an order from a Court because those Courts are well-known for passing this kind of atrocious orders. It's complete violation of human rights...that you are not allowed to move out of the country...Any court believing firmly in human rights, civil rights will not pass this order that you and child are restrained from moving [from] this place. This amounts to confining or putting in jail in the residence. This is known as house arrest!Can a Court pass an order of solitary confinement without [...] somebody guilty [...]? And you want us to follow that order in this country! Please don't...

After hearing Senior Advocate Nikhil Goel on behalf of the petitioner, the Court however issued limited notice to the extent of granting visitation rights (and other ancillary reliefs).

During the hearing, Justice Kant asked Goel to show how the Dubai Family Court, which granted the custody of the child to the petitioner while issuing a decree of divorce, had jurisdiction. When Goel answered that the parties were residing in Dubai, the judge retorted that the parties cannot confer jurisdiction on a Family Court. It was noted that the husband and the wife were Christians and they were not bound by Shariah Law.

"There was no question of that Court entertaining the divorce petition", Justice Kant remarked. At this point, Goel emphasized that the Dubai Court said it will consider non-Muslim law. Ultimately, Justice Kant told him that before deciding on the relief, the Court would satisfy itself as to the petitioner's conduct, the child's welfare (whether he is being provided good education etc.) and that the petitioner gets visitation rights.

The judge also remarked that the Karnataka High Court decision in the matter, which left it upon the Family Court to decide the issues, was correct.

Factual Background

As per contentions, the petitioner, a Ghana citizen residing in Dubai (UAE) married respondent No.6, an Indian citizen, in 2018 under the Foreign Marriage Act, 1969. The marriage was registered at the Consulate General of India in Dubai. A male child was born in wedlock in 2019. Until March 2021, the family lived together in Dubai. Subsequently, in April, 2021, respondent No.6 left Dubai with the son and came back to India in November 2021. The same year, the petitioner filed for divorce before the Dubai Court. The decree of divorce was granted in April, 2022, declaring that the petitioner was entitled to the custody of the child.

Proceedings before the High Court

In 2022, the petitioner approached the Karnataka High Court seeking a writ of habeas corpus as well as his son's custody. He contended that after coming to India, respondent No.6 ceased communication with him and deprived him of access to the child. He further raised a possibility of illegal confinement of his son and claimed that his wife did not comply with the Dubai Court's orders despite receiving a summons and attending virtual hearings.

The wife, in her defence, claimed that her exit from Dubai with the son was with the consent and knowledge of the petitioner. Further, she explained her travel to India by saying that the petitioner subjected her to physical, emotional and psychological abuse, which also impacted the child. It was also claimed that the petitioner imposed an unlawful travel ban on the son, contrary to UAE law; thereafter, he coerced her into withdrawing the divorce case filed by her in Dubai in 2021, in exchange for removing the travel ban and subsequently filed a divorce case himself to alienate her from the child.

Respondent No.6 pressed into service judgments which prioritized custody rights of mothers in case of minors and gave precedence to welfare of the child over "technicalities" like foreign decrees or comity of Courts.

Considering inter-alia the fact that the petitioner knew that his son was in the custody of the mother and there was a custody case pending before the Family Court (filed by respondent No.6), the High Court was of the view that it was not a fit case for issuing a writ of habeas corpus.

"we are of the opinion that the pending child custody case in the Bangalore Family Court must proceed to determine the child's best interest. It is clear that the petitioner - father is perfectly well aware that the child is in the custody of the mother. The child is aged less than five years and there is no concern raised as to the safety of the child in the hands of the mother. It is also clear that the matter is pending consideration before the Family Court," it said.

It further noted that all contentions could be raised by the petitioner before the Family Court, which was to pass orders keeping in mind the best interest of the child. Aggrieved, the petitioner approached the Supreme Court.

Case Title: X v. THE STATE OF KARNATAKA & ORS.