The Bombay High Court has directed the Union of India to appoint nodal officers in the Ministry of Home Affairs and the Ministry of Law and Justice for the purpose of tracking progress made in the service of court summons, notices etc., to a foreign country.
A division bench of Justice AS Oka and Justice Anuja Prabhudessai passed several directions while hearing an application filed in an appeal against a family court judgment dated April 30, 2009.
The applicants, Nilesh and Deepa Topiwala, got married in September of 1999. Their son Mihir was born in June 2002 at North Carolina, USA.
Following constant fights and discord in their marriage, Nilesh and Deepa started living separately. According to an agreement formed between the two dated September 17, 2003, their son was to stay with his father. After this, Deepa sought Mihir’s custody in the United States and got an ex parte order.
She also filed for divorce and an ex parte decree was passed. She initiated criminal proceedings against Nilesh, who by this time had come to India with Mihir.
In 2007, Gujarat High Court ordered Nilesh to hand over custody to the mother of the child while hearing a habeas corpus petition filed by her.
Nilesh then filed an application before the Pune family court, which was rejected. Following this, in an application filed in appeal of the said order, the high court directed Deepa to come to India with her son and granted temporary custody to the father from August 10 to 19 last year.
However, “due to various reasons”, these orders could not be implemented.
The Deputy Registrar of this Court received a communication from the Department of Legal Affairs (Judicial Section) in August 2016, stating that as per the Hague Convention of 1965 in civil and criminal matters, the Central Authority in the United States of America has authorised an agency by the name ‘Process Forward International’.
Therefore, the notices/summons be sent directly by the courts to the said agency ‘Process Forwarding International’.
In order to assist the court, Additional Solicitor General Anil Singh placed several documents before the bench, including the Treaty with India on Mutual Legal Assistance in Criminal Matters and a circular dated April 30, 2010.
As per the said circular, business rules of the Government of India contemplate the MHA as the Central Authority for seeking and providing mutual assistance in criminal law matters. In civil and commercial matters, the Ministry of Law and Justice is the central authority.
Apart from the directions to bring Mihir back to India and granting the applicant temporary custody of his son, the court asked the registrar to forward a copy of this order to ‘Process Forward International’.
Then came direction to the Union of India: “We direct the Union of India to nominate Nodal Officers in the MHA and the Ministry of Law and Justice who will be responsible for ascertaining the progress made in service of notices, summons etc sent by various Courts in India. He will be responsible for providing information to the Registrars of various HCs as regards progress made in service of notices/ processes/ summonses/ orders.”
This matter will now be listed for reporting compliance in August.
Read the Order here.