Minor Son Brought To India By Mother In 2018 Is US Citizen, Illegal Migrant In India: Rajasthan HC Allows Father's Habeas Corpus Plea

The Jaipur bench of the Rajasthan High Court allowed a habeas corpus plea filed by the father of a minor child was born and earlier residing in the US, was brought to India by his mother in 2018 and had not returned even after expiration of his visa, ruling that the child shall be considered an illegal migrant in India. A division bench of Justice Pankaj Bhandari and Justice Shubha Mehta further observed that in light of a prior final custody order passed by the US Court in favour of the petitioner, based on the Doctrine of Comity of Courts, the Family court in India had no jurisdiction to entertain an application under the Guardians and Wards Act filed by the mother of the child. On the question of the welfare of the minor child, the Court said:“As an illegal migrant child...is not entitled to many of the Constitutional rights guaranteed under the Constitution of India and would always be treated as an illegal migrant and would not even be treated as second class citizen as he is not even holding an Overseas Citizenship of India Card. Thus, the welfare of the child is in returning to the place of his birth i.e. United States of America, where all the rights would be available to him.”On the status of the child the court observed that the child is a U.S. citizen and there is a final custody order from the competent U.S. Court (granted after the father moved a plea) much prior to the order passed by the Family Court, Jaipur in the mother's plea. "We are of the considered view that petitioner is entitled to have the custody of his child and the welfare of the child is with the petitioner. In India, corpus would be treated as an illegal migrant and could be deported any time at the wish of the Authorities. He would not be having the status of a citizen of India and there would be many riders in his staying in India," the court underscored.BackgroundThe order was passed in a habeas corpus petition filed by a father who was residing in USA, for his minor child, who was born in USA and is an American citizen, seeking release of the child from the alleged illegal custody of his mother. It was the case of the petitioner father that the child had come to India with his mother in 2018 with a return ticket but instead of retuning to the US, the mother filed a petition before a Family Court under the Guardians and Wards Act seeking custody of the child which was allowed. On the other hand, the petitioner also filed a petition before a court in the USA in which a final custody order was passed in his favour.The petitioner argued that in the application moved by the mother, she did not disclose that the child was a US citizen and was not an ordinary resident of Jaipur, and was residing in India even after his visa had expired. Furthermore, since the child's visa had expired, he had become an illegal migrant in India, who can be deported by the Government of India at any time. The petitioner further argued that respecting the Principle of Comity of Courts, since there was already a final custody order by the US Court, the Family Court in Jaipur, which did not have territorial jurisdiction to entertain the plea under the Guardian and Wards Act, should have dismissed the application of the child's mother.On the other hand, the mother argued that the US Court's order was an ex-parte order passed without adducing any evidence, unlike the order passed by the Family Court. Hence, now the remedy available to the petitioner was to file an appeal against the order of the Family Court. It was argued that there was no restraint order by theU.S. Court at the time when the child was brought to India.Secondly, it was argued that the primary condition for deciding the custody in a habeas corpus petition was the child's welfare and since the child was staying with the mother for last 6 years, his welfare was in staying with her. Thirdly, it was argued that a minor child could not be considered an illegal migrant. FindingsAfter hearing contentions from both the sides, the Court opined that in light of the information not disclosed by the child's mother in front of the Family Court, it could be said that she did not go to the family court with "clean hands" while filing the petition.Further, the Court perused Section 9 of the Guardians and Wards Act that provides that if the application was made regarding guardianship of the minor, it shall be made to the district court of the place where the minor “ordinarily resides”. It further referred to the Supreme Court's decision in Ruchi Majoo v Sanjeev Majoo, in which it was held that, a temporary resident under compulsion, however long, could not be termed as place of “ordinarily resides”.In this light, the Court said:“A U.S. Citizen who has been brought to India on a visa which was to expire on 04.03.2019, cannot be said to be ordinarily resident of Jaipur. The expression 'ordinarily resides' signifies something more than a temporary residence. Even though the period of such temporary...

Minor Son Brought To India By Mother In 2018 Is US Citizen, Illegal Migrant In India: Rajasthan HC Allows Father's Habeas Corpus Plea

Nupur Agrawal

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