The Madhya Pradesh High Court recently allowed a habeas corpus petition, which in effect pertained to the custody of a 2 year old boy, holding US citizenship.
Emphasizing on the family law principle that "welfare of the child is of paramount importance", the bench of Justice SC Sharma examined the issue whether a Habeas Corpus petition is maintainable in respect of custody of a minor child and it held,
"a writ petition for issuance of a writ in nature of Habeas Corpus under article 226 of the Constitution of India in the peculiar facts and circumstances of the case is certainly maintainable. Otherwise also, keeping in view the welfare of the child and other factors including interaction with the child, this court is of the opinion that the child has to be in the custody of mother."
The writ had been filed by the mother of a 2 year old boy- born in and a citizen of the United States.
Significantly, the Petitioner's husband had obtained an ex-parte restraint order against her from an American Court, forcing her to move out of her matrimonial house and return to her parents' home in Indore, India.
Thereafter, the Petitioner's husband left their son at his parents' (the child's grandparents') house in Gwalior, and executed a Power of Attorney and Authorization in the favour of his parents, to look after the child.
The Petitioner had accordingly moved the High Court, seeking custody of her child.
The Respondents, i.e. the in laws of the Petitioner had contended that a habeas corpus petition is not maintainable in matters of child custody.
However, the Court was disinclined to "throw away" the Petitioner on the ground of jurisdiction or on the ground of alternative remedy available under the Guardians and Wards Act, 1890.
"It is true that the child is a US citizen, however, the mother is an Indian citizen and she does have the legal right guaranteed under the Constitution of India to file a writ petition under Article 226 and to pray issuance of a writ in the nature of Habeas Corpus," the court added.
Reliance was placed on Capt. Dushyant Somal v. Sushma Somal, (1981) 2 SCC 277, whereby the Supreme Court had allowed a writ in the nature of Habeas Corpus with a direction for giving the custody of the child to the petitioner therein.
In the present case, the Court observed, "the child is aged about two years and this Court keeping in view Section 6 of Hindu Minority and Guardianship Act, 1956 is of the opinion that the child has to be given in the custody of the mother."
The court however clarified that its order shall not come in way of the parties, in case they desire to approach the Civil Court under the Guardians and Wards Act, 1890.
"The Civil Court shall be free to decide the matter without being influenced by the order passed by this Court keeping in view the statutory provisions in respect of visitation rights of father / grandparents," the bench clarified.
Restraint Order passed by American Court does not preclude the Petitioner of her right to child's custody
The Respondents had contended that in terms of the injunction granted against the Petitioner by the Franklin County Common Pleas Court, Division of Domestic Relations, Columbus, Ohio (USA), the Petitioner was not entitled to the child's custody.
Rejecting this argument the bench held the said ex-parte injunction order nowhere restrains the mother from meeting the child or to keep the child with her. Further, no order was placed on record which directs the custody of the child to be with the father.
"There is no such injunction order granted by any Court situated in United States of America directing custody of child to be with the father. The so called injunction order is also an ex-parte order. The injunction order nowhere mentions anything about the child. The husband might have obtained injunction against wife in respect of domestic violence i.e. Domestic Violence Civil Protection Order (CPO ex-parte) but it is certainly not an order in respect of the custody of the child and therefore, the so called civil protection order does not help the grand parents in any manner."
In fact, the court observed that the child was extremely fond of his mother and it remarked,
"Nothing equals a mother's love. Mother love for his child cannot be described in words. It is beyond the boundaries provided by law and that is the reason the Hon'ble Supreme Court has held that the welfare of the child is of paramount importance in the matters relating to the custody of children."
Power of Attorney and Authorization irrelevant in matters of child custody
The court held that the Power of Attorney and Authorization executed by the Respondent-husband in the favour of the child's grandparents, to look after the child, was an "unheard concept" in Indian courts.
"In India there is a prescribed procedure for appointment of guardians under the Guardians and Wards Act, 1890. The procedure adopted by the husband of the petitioner, empowering the grand parents to keep the child based upon some Power of Attorney is unheard-of. It does not create any right in favour of respondents No.4 and 5," the court observed.
Accordingly, the court allowed the writ petition. It also stated that since the child in question is a US citizen, the US Embassy and the Union Ministry of External Affairs be intimated about the order.
"The Ministry of External Affairs, Government of India / Competent Authority shall pass necessary orders from time to time for extension of Visa of the child, if so required, in accordance with law. The petitioner shall make available the whereabouts of the child to the US Embassy as and when required or any other information required by the US Embassy in the matter," the court concluded.
Case Title: Anushree Goyal v. State of Madhya Pradesh & Ors.
Case No.: WP No. 7739/2020
Quorum: Justice SC Sharma
Appearance: Advocate Hitesh Sharma (for Petitioner); Additional Advocate General Pushyamitra Bhargav (for State); Advocate RS Chhabra (for Respondents)
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