Gujarat High Court
Dakshaben Dineshbhai Patel vs Dineshbhai Bhulabhai Patel And Ors. on 5 August, 1991
Equivalent citations: (1991)2GLR1023
Author: C.K. Thakker
Bench: G.N. Ray, C.K. Thakker
JUDGMENT C.K. Thakker, J.
1. This petition is filed by the petitioner for a writ of Habeas Corpus and/or any other appropriate writ, order or direction calling upon respondents Nos. 1, 3 and 4 to produce the petitioner's daughter Rakhee and son Nayan and to give custody thereof to her.
2. To appreciate the real controversy in question, necessary facts may now be briefly stated.
It is the case of the petitioner (Dakshaben) that she is a permanent resident of Lenasia, Transwal. The first respondent-Dineshbhai was born at Johannesburg and is also a citizen of South Africa. Said Dineshbhai married to the petitioner on March 13, 1984 through the Court of Lenasia, South Africa. After the marriage, both the petitioner as well as the first respondent were staying together at Johannesburg as wife and husband and during the wedlock, the petitioner gave birth to a daughter Rakhee on December 18, 1984 and a son Nayan on May 24, 1986. According to the petitioner, all of them went to U.K. for a pleasure trip in the year 1988 and during their stay at London differences arose between the parties which compelled the petitioner to move the principal Registry of the family division of the High Court of Justice, (hereinafter referred to as 'the British Court'), for care and control of her minor children Rakhee and Nayan under the Supreme Court Act, 1987 and the Guardianship of Minors Acts, 1971 and 1973 of England. In those proceedings the British Court passed an order on February 22, 1988 and granted leave to the first respondent to remove the minors permanently from the jurisdiction of the said Court. It is her allegation that under the guise of the said order, the first respondent removed the children beyond the reach of the petitioner and came to India and since then he has been staying in India at village Paradia in Navsari Taluka in the State of Gujarat and is having illegal custody of Rakhee and Nayan.
3. According to the petitioner, she returned to Johannesburg and started residing with her parents. She had no funds to come to India and so she joined service for raising funds so as to enable her to come to India, where respondent No. 1 was residing with the minor children. It is her case that she made attempts to reconcile the matrimonial home and also to get the custody of the minor children but she failed. In August 1990, she came to know about that respondent No. 1 has already re-married one Sharmila Patel on July 21, 1990 and thereafter there was no question of re-union between the petitioner and the respondent No. 1 and she tried to get the custody of the minor children from the first respondent. Having failed, she has approached this Court by filing this petition in December 1990 for the reliefs mentioned hereinabove.
4. A notice was issued by the Division Bench (Coram: R.C. Mankad & B.J. Shethna, JJ.) on December 17, 1990 by making it returnable on December 24, 1990. Ad interim relief was also granted restraining the first respondent from removing Rakhee and Nayan outside Valsad District without permission of the Court. In pursuance of the notice of this Court the respondents appeared. Affidavits and counter-affidavits were filed by the parties taking a number of factual as well as legal contentions which we will refer to hereinafter. On February 14, 1991, the Court (Coram: G.N. Ray, C.J. & S.B. Majmudar, J.) passed an order in accordance with the procedure laid down by the Supreme Court in the case of Dr. (Mrs.) Veena Kapoor v. Verindra Kumar Kapoor , by directing the District Judge, Surat to submit a report on the question whether the custody of the above two minor children should be handed over to the petitioner or not. Pursuant to the above order, the Joint District Judge and Additional Sessions Judge, Surat has submitted the report on April 16, 1991 which is a part of the record of this petition. According to the learned Judge, taking into account the circumstances mentioned in the said report and considering the welfare of the minor children which is a paramount consideration in such cases, custody of the minor children should be handed over to the petitioner-mother rather than to the first respondent-father.
5. This Court has also tried to get the matter amicably settled between the parties with regard to the custody of the children but the matter could not be settled. By an order dated June 12, 1991, we admitted the matter by issuing 'RULE' thereon. It was made returnable on June 20, 1991. The matter is now finally heard by us.
6. Miss V.P. Shah, the learned Counsel for the petitioner-wife submitted that apart from the fact that both the children are minor, they are of a tender age of 7 years and 5 years respectively. In these circumstances, their welfare and interest can well be served only by giving custody to the mother (petitioner) rather than to the father (first respondent). For the said purpose, she invited our attention to the decision of the Bombay High Court in Saraswati Shripad Ved v. Shripad Vasanji Ved reported in AIR 1941 Bombay 103 (DB). She has further submitted that in the facts and circumstances of the case, no custody can be given to the first respondent in view of the fact that admittedly the first respondent has re-married one Sharmila Patel in July 1990 and admittedly the petitioner has not re-married. Paramount consideration being the welfare of the children, the petitioner-real mother and natural guardian-should not be deprived of the custody of her children and tender aged children should not be permitted to stay with the first respondent-father with their step-mother Sharmila. She has further submitted that the first respondent is in the habit of entering into the contracts of marriage every now and then concealing and suppressing real facts and defrauding the other persons. She submitting that admittedly the first respondent initially married one Krishna Kumari on October 25, 1980 in England and even though the said marriage was subsisting and divorce decree was not passed, he married the petitioner on March 13, 1984. A divorce decree was passed only on January 15, 1985, i.e., after the petitioner gave birth to daughter 'Rakhee' (December 18, 1984). Miss Shah, therefore, submitted that the marriage of the first respondent with the petitioner was null and void. If it were so, the argument proceeded, both the children could be said to be illegitimate children and in accordance with law, the petitioner-mother can be said to be the only guardian so far as those illegitimate children are concerned. It is also argued by Miss Shah that the first respondent was aware of the fact that he had not taken divorce from the petitioner. Eventhough the petitioner was trying her best to have the matrimonial home settled, the first respondent once again married Sharmila Patel on July 21, 1990. It is only when criminal proceedings were initiated by the petitioner under the provisions of the Indian Penal Code, 1860 that the so-called divorce was given by the first respondent to Sharmila Patel on November 19, 1990 though it is admitted even by the first respondent that even today he is staying with Sharmila Patel and both are residing with each other as husband and wife. Miss Shah also submitted that in spite of the orders passed by the British Court, extraordinary jurisdiction of this Court under Article 226 of the Constitution of India cannot be taken away or curtailed and this Court has ample power to issue an appropriate writ, direction or order directing the first respondent to hand over the custody of the minor children to petitioner-mother. Miss Shah submitted that the petitioner will abide by any terms or conditions which may be imposed on her but in the facts and circumstances, the first respondent should be directed to give custody of the minor children to the petitioner-mother.
7. Mr. S.N. Soparkar, on the other hand, submitted that the petition filed by the petitioner is misconceived, not maintainable at law and requires to be dismissed on a number of grounds. He submitted that a writ of Habeas Corpus can be issued only in a case where the Court is prima facie of the opinion that the person in respect of whom such writ is sought is kept under illegal or unlawful detention and not otherwise. By no stretch of imagination, according to him, the custody of Rakhee and Nayan by the first respondent can be said to be illegal or unlawful. Apart from the fact that he is also father and, therefore, natural guardian as such, even according to the order passed by a competent Court, i.e., the British Court, he is keeping the custody of the minor children. He submitted that the application made by the petitioner-mother was dismissed by the British Court and the first respondent-father was allowed to remove permanently the children from the jurisdiction of the British Court. If the petitioner, felt aggrieved by the said order, she ought to have taken appropriate proceedings in accordance with law against the said order which she has not done. In these circumstances, a writ of Habeas Corpus is not tenable. He has further submitted that when an order is passed by a competent Court (the British Court), the said order can be interfered with either by the same Court or by a Supreme Court in an appropriate proceeding. this Court is not exercising appellate/revisional/writ jurisdiction over the British Court against the order passed by that Court and on that ground also, so long as the order passed by the British Court stands and is operative, the said order cannot be directly or indirectly in collateral proceedings be interfered with. Mr. Soparkar, further submitted that neither the petitioner-mother nor the first respondent-farther nor any of the minor children Rakhee or Nayan are citizens of India. All of them are citizens of South Africa and on that ground also, the petitioner cannot approach this Court by filing the present petition. Mr. Soparkar, submitted that even on merits, the petitioner is not entitled to get the reliefs as prayed for by her. He submitted that the motherly love and affection, now sought to be put forward by the petitioner is merely an after-thought, only with a view to harass the first respondent and to deprive him of the custody of the minor children. He wondered where the petitioner had gone when both the minor children and particulary Nayan was in very much need of the motherly love and affection from 1988 to 1990, after the order was passed by the British Court in February 1988 when he was very young. Admittedly Nayan was born in May, 1986. Thus, he was less than two years old when the custody was handed over by the British Court to the first respondent-father. The petitioner, however, did not do anything to get back the custody of the minor children. In fact she wanted to settle herself in South Africa and therefore, even though the first respondent tried his best to settle down with the petitioner and requested her for the purpose of re-union to come to India, she refused to come back to India. It is only when the first respondent married Sharmila Patel that the petitioner has come forward to take custody of the minor children. Mr. Soparkar, also submitted that in the facts and circumstances of the case, the custody should not be given to the petitioner who has gone to the extent of alleging the minor children as illegitimate though factually as well as legally this is not position. Mr. Soparkar submitted that there was no suppression of any fact by the first respondent and the petitioner herself was aware that the first respondent had married Krishna Kumari in October 1980 in England. Since the said marriage was not successful, it was not continued. The first respondent was under the impression that he could marry the petitioner and accordingly the marriage took place between them in March, 1984. Mr. Soparkar drew our attention to 'admitted facts' produced on record of the British Court by the petitioner and the first respondent wherein the petitioner herself had admitted that the earlier marriage of the first respondent was not operative one. Therefore, there was no question of concealing any fact to defrauding the petitioner. Mr. Soparkar also submitted that like the Indian Law, even under he law prevailing in South Africa, the minor children Rakhee and Nayan can be said to be 'legitimate children' and for the said purpose he placed reliance on the 'Law of Persons and the Family' by P.Q.R. Boberg and 'Law of Parent and Child' by Erwin Spiro. Mr. Soparkar submitted that, a mother who for the purpose of getting the custody of the children goes to the extent of describing legitimate children as illegitimate cannot be handed over custody of those children, if, as per the settled principle of law, the paramount consideration is the welfare of the children. With regard to the marriage with Sharmila Patel, Mr. Soparkar submitted the since the petitioner had refused to come back to India and since the first respondent had decided not to go to South Africa, there was no option for the first respondent but to re-marry. He has submitted that there is no evidence worth the name that either respondent No. 1 or Sharmila Patel is not taking care of any of the minor children properly or that because of the step-motherly treatment given by Sharmila Patel either to Rakhee or to Nayan the first respondent should be deprived of the legal custody which has been given to him by the competent British Court. He, therefore, prayed for dismissal of the petition. Finally Mr. Soparkar submitted that in custody cases, the Court will always take into account the material fact that the other spouse to whom the custody is not given is also able to meet the child or visit the child where he or she is kept during reasonable interval and that he or she would be able to show his or her love and affection towards the said child. According to Mr. Soparkar, if the relief prayed for by the petitioner is granted, irreparable injury and harm would be caused to the first respondent inasmuch as, even according to the petitioner herself, she wants to go back to South Africa, i.e., outside the jurisdiction of this Court. Therefore, even if any condition is imposed by this Court, virtually it is of no effect whatsoever. Apart from the fact that the first respondent will not able to visit or see the minor children at reasonable interval, even this Court also cannot do anything once the relief is granted and the petitioner is allowed to take away Rakhee and Nayan to South Africa.
8. We have given anxious consideration to the contentions raised by both the parties. So far as the preliminary objection of Mr. Soparkar is concerned, it need not detain us any more since we are of the opinion that the petition filed by the petitioner-mother in this Court is clearly maintainable at law. Article 226 of the Constitution of India empowers every High Court not only to issue a writ of Habeas Corpus, etc., but to pass any order or issue any direction in the nature of Habeas Corpus etc. It is, therefore, not necessary that illegal detention, confinement or arrest is sine qua non to the exercise of power under Article 226 of the Constitution of India. If in the exercise of extraordinary jurisdiction under this Article the High Court is of the opinion that it is in the interest and welfare of the child that an appropriate order should be passed, the Court undoubtedly possesses the said power. No limits are imposed on this Court before exercising that power. Therefore, as per settled principle of law and taking into account the paramount consideration of the welfare of a child every High Court can pass an order with regard to a custody of a child. Vide Surinder Kaur v. Harbax Singh ; Savitaben Lagharbhai v. Manji Ramji Chavda and Anr. ; Elizabeth v. Arvand . We, therefore, reject the contention of Mr. Soparkar on that count.
9. We are also not impressed by the argument of Mr. Soparkar that in view of the order passed by the British Court, we have no jurisdiction to deal with the matter and the appropriate remedy available to the petitioner against that order would be to file an appropriate proceeding either in that Court or in any Superior Court by way of appeal and/or revision. In our view, this petition is not an appeal or revision or writ against the order passed by the British Court on February 22, 1988. As per settled Principle of law, an application for custody of a minor is always maintainable in any competent Court having jurisdiction to deal with the said application and the Court has power to pass appropriate order in accordance with law taking into account all the facts and circumstances of the case. Therefore, in our considered opinion, in spite of the order passed by the British Court on February 22, 1988, the petition filed by the petitioner-mother for custody of the minor children Rakhee and Nayan is maintainable at law.
10. Now, as regards the merits of the case, it is said that every war has its casualties and a 'war' between husband and wife is not an exception to the general rule, the casualties being innocent children. A Court will do everything to protect the interest and welfare of the children which are really innocent victims of their parents' disputes.
11. It is not only the power but the duty of the Court to see that taking into account the paramount consideration of the interest and welfare of the child that the custody of a child is entrusted to one of the parents. Rosy Jacob v. Jacob . But at the same time as per the settled law, it is also the duty of the Court to see that other parent who does not have custody will still be able to see and meet the child under the order of the Court and has access to the said child.
12. Having applied our minds to the facts and circumstances of the present case, we are of the considered view that the custody of Rakhee and Nayan cannot be handed over to the petitioner-mother. We must frankly admit that ordinarily a mother should be given custody of the children particularly when in the instant case they are of 7 years and 5 year respectively.) Vide Saraswatibai v. Shripad. However, in our view, Mr. Soparkar appears to be right that the petitioner-mother, even according to her, wants to take away both the children outside the jurisdiction of the Court and if the custody of the children would be given to the mother-present petitioner, this Court would not be able to exercise its power as soon as they are taken to South Africa. Mr. Soparkar is also right in submitting that it would not be possible for this Court to issue necessary directions with regard to the access to the children by the first respondent-father at a reasonable interval, in view of the fact that the first respondent has finally decided to settle in India while the petitioner has declared that she would not leave South Africa. Mr. Soparkar, therefore, has also placed reliance on the case of Saraswatibai v. Shripad of the Bombay High Court referred to earlier and relied upon by Miss Shah in support of his submissions that, this is one of the relevant and material circumstances which cannot be ignored by the Court. In the said decision, the Division Bench of the Bombay High Court observed as under:
The mother should not remove the child from the jurisdiction of the Court without an order of the Court. The mother should send the child to the father's house twice a week at times convenient to the mother for a couple of hours in each occasion, subject to the consideration of the child's health the father undertaking to make arrangement for conveying the child back to the mother. Liberty to both the parties to apply to the Chamber Judge for further direction.
See also Manju Tiwari v. Rajendra Tiwari
13. In our opinion, therefore, when the petitioner has come forward with a specific case that she has already settled in South Africa and she wants to go back there and further that she has stayed here only for the purpose of getting the custody of the children, if the custody of the children is given to the petitioner, apart from the fact that other parent, namely, the respondent-father will have no access to the children at reasonable interval, even this Court will also not be able to exercise its jurisdiction and supervise the well-being and interests of the children which is of a paramount consideration.
14. We are also of the view that in spite of the fact that the first respondent-father has re-married Sharmila Patel, there is nothing on record to show that either the first respondent-father or Sharmila Patel-stepmother-had not shown love and affection towards Rakhee or Nayan. Even the report submitted by the Joint District Judge does not disclose that the children have been ill-treated. Rakhee was required to be admitted to Hostel in view of the fact that English Medium School is not available where the first respondent-father resides. Looking to the facts it also appears that after the British Court handed over the custody of both the children to the first respondent-father and allowed him to permanently remove the children outside the jurisdiction of that Court as early as in February, 1988, no concrete or substantial attempt has been made by the petitioner to get the custody of Rakhee or Nayan. The allegation of first respondent-husband is that it is only with a view to deprive him of the custody of Rakhee and Nayan after he re-married to Sharmila Patel that the petitioner-mother has come forward. We do not express any opinion about it. However, in the facts and circumstances of the case, we are of the view that even though the petition filed by the petitioner-mother after the order passed by the British Court giving custody to the first respondent-father is maintainable at law, we do not think that in view of the above circumstances, it would be proper on our part to give custody to the petitioner-mother and we, therefore, hold accordingly.
In the result, this petition is dismissed. Rule is discharged.