Baban Shyam.R.Babu v. Union of India and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** ## **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 03RD DAY OF JULY 2019 / 12TH ASHADHA, 1941** **WP(Crl.).No.111 of 2019** ## **PETITIONER:** **BABAN SHYAM.R.BABU AGED 39 YEARS S/O. RAJENDRA BABU, AAKASH DEEP, TCRA -87 SREE VILASAM RAOD, NORTH PARAVUR 683 513.** **BY ADV. SMT.K.S.SANTHI** ## **RESPONDENTS:** |**1**|**UNION OF INDIA**| |---|---| ||**REPRESENTED BY SECRETARY,**| ||**MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI.**| |**2**|**STATE OF KERALA,**| ||**REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT,**| ||**SECRETARIAT, TRIVANDRUM.**| |**3**|**MRS. SURYA DAS,**| ||**AGED 38 YEARS**| ||**W/O. BABAN SHYAM R BABU,**| ||**NOW RESIDING AT 605,**| ||**WEST MADISON STREET,**| ||**PRESIDENTIAL TOWERS, TOWER NO. 3, APARTMENT NO. 2201,**| ||**CHICAGO, ILLINOIS 60 661-2471, U.S.A. EMAIL. SURYA,**| ||**BABANSHYAM @ GMAIL . COM.**| ||**OFFICE ADDRESS AT**| ||**MRS. SURYA DAS, TRANS UNION, 555 W ADMAS ST. CHICAGO**| ||**IL 60 661, USA,**| ||**PERMANENT ADDRESS IN INDIA.**| ||**MRS SURYA DAS, D/O. DASAPPAN PEEDIKAPAMBIL OLASSA,**| ||**KOTTAYAM 686 014.**| Wpcrl.111/2019 2 **Addl.R4- THE DIRECTOR GENERAL OF POLICE, OFFICE OF DGP, TRIVANDRUM.** **(IMPLEADED AS PER ORDER DATED 25.3.2019 IN OA 1/19 IN WP(CRL)111/2019)** **BY ADVS. SHRI.P.VIJAYAKUMAR, ASG OF INDIA SRI.P.S.NANDANAN SRI.K.C.SALMAN SRI.P.N.ANOOP** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 03.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Wpcrl.111/2019 3 ## **JUDGMENT** ## **K.Harilal, J.** 1.The petitioner is the husband of the third respondent and their marriage was solemnized on 1.11.2010 at Kottayam. A child was born in the said wedlock. In 2016, the third respondent got an assignment in Chicago, United States of America with HIB visa. When the third respondent got assignment in USA, the petitioner and the child accompanied her on a dependent visa (H4 visa). Thereafter, they lived together with the child till 2018. After that, they came to India. The third respondent was undergoing a treatment in Amrutha Hospital, for a short period and thereafter, she left to USA along with the child, leaving the petitioner in India Wpcrl.111/2019 4 deliberately, according to the petitioner. Thus, to the surprise of the petitioner, the third respondent left India with the child. The petitioner alleges that the third respondent has abducted the child. The child is in the unlawful custody of the third respondent, according to the petitioner. He has no visa to liberate the child from the custody of the mother, the third respondent. Hence, he prayed for issuing a writ of habeas corpus directing the third respondent to produce the child before the court for enabling her to get custody of the child. - 2.The third respondent entered appearance through counsel and filed a counter affidavit. She denied the allegation that she has abducted the child. According to her, there is no reason to Wpcrl.111/2019 5 abduct her child, who lived with her and as a normal act, she had taken her daughter to Chicago, as the child has been residing with the third respondent and attending to the school at Chicago in USA. According to the third respondent, the petitioner is neither a loving husband nor a father. The family life in Chicago was unhappy due to the reason that the petitioner was very cruel in behaviour. The claim of the petitioner that the child has love and affection towards him, is false, because, the child was also treated with cruelty. Further, she contended that she has filed divorce petition, OP(HMA) 423/2019, OP 445/2019 for return of money and ornaments and M.C.76/19 for getting maintenance to the child from the petitioner, before the Family Court, having Wpcrl.111/2019 6 jurisdiction to determine the matrimonial dispute between the petitioner and the third respondent. Thus, in short, the petitioner has made only a false allegation that the third respondent abducted the child illegally from India. In short, the child was living with the third respondent in USA. The third respondent prayed for dismissal of the writ petition, as the custody of the child with the third respondent is not an illegal or unlawful detention, falling under the writ of habeas corpus. 3.Heard the learned senior counsel for the petitioner and the learned counsel for the third respondent. - 4.Learned senior counsel appearing for the petitioner advanced arguments exhaustively Wpcrl.111/2019 7 contending that this is a fit case to exercise the writ jurisdiction, under Article 226 of the Constitution of India, by issuing a writ of habeas corpus, directing the third respondent to produce the child before the court and grant custody of the child to the petitioner. In support of the arguments, learned counsel cited the decision of the Supreme Court in _**Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others**_ **[2019 (3) KHC 167]** . The learned counsel drew our attention to paragraph 19 onwards. We have meticulously gone through the aforesaid decision and the relevant paragraph, paragraph 19, reads thus: _“In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act, as the case may be. In cases_ Wpcrl.111/2019 8 _arising out of the proceedings under the Guadians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the report, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extra-ordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.”_ 5.We have no doubt in our mind that this court can invoke the writ jurisdiction, under Article 226 Wpcrl.111/2019 9 of the Constitution of India, in custody matters also, where, _prima facie_ , this court finds that the minor child is under the unlawful detention of the respondent. In paragraph 19 of the aforesaid decision, the Supreme Court specifically held that in the writ court, the rights are determined only on the basis of the affidavits. Where the court is of the view that detailed enquiry is required, the court may - decline to exercise the extra ordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of - extra ordinary jurisdiction on a petition for . habeas corpus 6.In view of the above dictum, the question to be Wpcrl.111/2019 10 considered is, is this a fit case to invoke the extra-ordinary jurisdiction to issue a writ of habeas corpus. 7.Going by the facts of the case in the decision cited above, we find that, there, the dispute in respect of the custody of the child was between the father and sister of the deceased wife. The child was in the custody of the sister of his deceased wife. In that context, the father approached the High Court for invoking the writ jurisdiction under Article 226 of the Constitution seeking production of the child from the unlawful custody of the sister of the deceased wife and the Supreme Court justified the prayer for invocation of writ jurisdiction in that context. 8.It is needless to say the sister of the mother Wpcrl.111/2019 11 has no legal right to have custody of the child, when the father, the natural guardian of the child is alive and claims for custody of the child. But, in the instant case, the dispute in respect of the custody of the child is between the father and mother. The child is aged 5 years only. According to the admitted facts, immediately after the birth of the child, the third respondent, the mother of the child, got employment in USA and the child was brought up in USA. Even now the child is studying in a school at Chicago in USA. The petitioner was taken to USA under the family visa issued to the third respondent. Thereafter, the petitioner and the third respondent along with the child came to India on leave in the year 2018. After that, the third respondent left India with the Wpcrl.111/2019 12 child only, leaving the husband in India. Since he has no visa, he is unable to go abroad. In the above circumstance, it cannot be held that the child is in the unlawful detention of the mother, the 3[rd] respondent. Further, we find that the dispute involved in this case is a custody dispute of the child between the father and mother. We are of the considered view that such a custody dispute in respect of the child between father and mother cannot be determined, invoking the writ jurisdiction under Article 226 of the Constitution of India. The remedy lies before the Family Court, a special court constituted for determining the entitlement of custody of the children, where there is a dispute between father and mother. More importantly, in the counter affidavit, the third Wpcrl.111/2019 13 respondent has specifically stated that she has already filed OP(HMA) 423/2019, OP 445/2019 and M.C.76/19 before the concerned Family Court in Kerala. Thus, the matrimonial dispute between the petitioner and the third respondent lies before the Family Court in the aforesaid original petitions. - 9.In the above view, we are of the opinion that since the 'paramount welfare' of the child is the question in controversy to be determined, such an adjudication can be done, after taking evidence, before the Family Court and not before the High Court, under Article 226 of the Constitution. 10. In the above analysis, we find that there is no reason to issue a writ of habeas corpus, in view of the particular facts and circumstances Wpcrl.111/2019 14 of the instant case. The writ petition fails and is, accordingly, dismissed. **Sd/-** **K.HARILAL JUDGE** **Sd/-** **ANNIE JOHN JUDGE** sl. Wpcrl.111/2019 15 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE BIRTH CERTIFICATE DATED 10.12.13 OF ARDHANA BABAN.** **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 20TH DECEMBER 2018 RECEIVE BY COURIER AS SENT BY THE 3RD RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE EXTRACT OF PASSPORT OF THE PETITIONER DATED 9.12.11** **EXHIBIT P4 TRUE COPY OF THE EXTRACT OF PASSPORT OF THE 3RD RESPONDENT DATED 21.3.06 ISSUED AT KOCHI.** **EXHIBIT P5 TRUE COPY OF THE TREATMENT CARD OF THE MINOR CHILD ARADHANA AT AMRITHA INSTITUTE OF MEDICAL SCIENCE PONEKARA DATED 21.11.18.** **EXHIBIT P8 TRUE COPY OF O.P.445/2019 FILED BY 3RD RESPONDENT BEFORE FAMILY COURT,ETTUMANOOR.** /true copy/ PS TO JUDGE