Single Judge 'Should Have Exercised Restrain', Its Observations Must Be Disregarded: Madras High Court Allows US Citizen To Take His Sons Abroad

A division bench of the Madras High Court recently “disregarded” the observations made by a single judge in his order granting interim custody of minor twins born in the US to their mother till the pendency of the matrimonial dispute in India. The single judge had disagreed with the earlier directions of a division bench asking the woman to hand over custody to the father who was residing in the US. In a contempt petition filed by the father against non-compliance of the directions issued by the division bench, the bench of Justice S Vaidyanathan and Justice Anand Venkatesh noted that the single judge set at nought the directions of the division bench even though it was not the subject matter before him. The court added that the single judge could not have dealt with the subject matter of custody which was already decided in a habeas corpus petition and he could not set aside the findings and directions of the Division Bench in a petition filed under Article 227 of the Constitution. That apart, there was no lis before the learned single Judge, seeking for the custody of the children. In view of the same, with due respect to the learned single Judge, the Hon'ble Judge could not have dealt with the subject matter of custody which was already decided in the H.C.P. and he cannot, in a petition filed under Article 227 of the Constitution of India, indirectly set aside the findings and directions issued by the Division Bench. The court also noted that under Clause 37 of the Letters Patent Act and Article 225 of the Constitution, the High Court has framed the Madras High Court Writ Rules 2021 which mandates that a petition for Habeas Corpus should be posted only before a division bench. Relying on a full bench decision in District Magistrate v. K.C.Mammen Mapillai, the court added that a single Judge of the Court has no power to deal with a matter, contrary to the allocation made under the Appellate Side Rules. Therefore, according to the division bench, the observations made by the single judge were non-est in the eye of law. The learned single Judge should have exercised restraint and ought not to have sat on the considered judgment passed by a Division Bench and any orders passed by the Hon'ble Judge must be taken to be without jurisdiction and it vitiates the order as the one passed by a corum non judice. Noting that the twin’s passport was expiring, the court observed that there was an immediate need to renew the passport since otherwise the stay of the children will become illegal and the OCI card granted by the children will get cancelled. Thus, considering the paramount interest of the children, the court directed the father to take the kids with him to the USA to get their passports renewed. Case Title: KC v. UK Citation: 2023 LiveLaw (Mad) 75 Case No: Cont P 372 of 2023Click here to read/download the order

Single Judge 'Should Have Exercised Restrain', Its Observations Must Be Disregarded: Madras High Court Allows US Citizen To Take His Sons Abroad

Upasana Sajeev

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