Andhra Pradesh High Court - Amravati
N. Pavan Kumar vs The Union Of India on 12 April, 2019
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IN THE HIGH COURT OF ANDHRA PRADESH
,
(Special Original Jurisdiction)
+
FRIDAY ,THE TWELFTH DAY OF APRIL
TWO THOUSAND AND NINETEEN
PRESENT
THE HONOURABLE THE ACTING CHIEF JUSTICE C,PRAVEEN KUMAR
AND
THE HONOURABLE SRI JUSTTCE M.SAWANARAYANA MURTHY
WRIT P ETITION NO: 4779 5 0F 2018
Between:
N. Pavan Kumar, S/o^ N Syamosundara Naidu, Aged about 40 years,
Hindu Residino at 19-.14-1- t, naghive;Ora ' Nagai Xes"u"Vrna6rniJ,
Tirupati, Andhr5 pradesh
...PET|T|ONER
AND
. The.Union
'1
of lndia, Rep. by principal Home Secretary Ministry of Home
Affairs, New Delhi
2. The State of Andhra pradesh, Rep. by principal Home 'vrirv vvvrvLurv'
Secretarv.
Home Department,
^r. tne urrector ceneralVetagapudi, nnorria p;"-;;;h
Of police, Ap DCp Head euarters, Mangalagiri,
Andhra Pradesh
4. The Additional DirectorGeneral Of police (ClD), Ap DGp Head
_ Quarters. Mangalagiri. Andhra pradesh-- '-'-
5. I he.Superintendent of police, Tirupati Urban
District,Tirupati, Andhra
Pradesh
6. The circre rnspector, Tiruchanur porice station, Tiruchanur, Andhra
Pradesh
7' rhe Assistant Director, (NCB (rnterpor) New Derhi) centrar Bureau of
lnvestigation, New Delhi
8. The Under Secretary (Legal), lS_ll Division,Ministry of Home Affairs,
GOl, New Dethi
9. Jhg Union-of lndia, R"-p..p.y principal Foreign Secretory Ministry of
Externat Affairs, New tielhi
10.The Under Secretary (Extradition) Consular, passport and
Division, GOl, New Ddthi Visa (CpV)
'1
1. Regional Passoort g[lc^er, State of Andhra pradesh
Visakhapatnam,
Andhra Pradesh-5300Og
'12. lt4aheswari Ramineni,
R. Muniswamy Naidu Hindu aged about 3g
years Residing at 7500_D/o
Kirby Drive, eptiZ,t,iouston, f6xasliiOe-O-,
U.S.A.
...RESPONDENTS
Petition under Articre 226 of the constitution of rndia praying that in
the circumstances stated in the affidavit fired therewith, te
be pleased to issue a writ, order or Direction more particurarry co"uri ;"y
High
one in the
I
nature of Writ of habeas corpus directing Respondent Nos. 1 to 12 to
produce the ward of this Honble court N. Jainarayan Sai (DOB, October 2,
2014) before this Honble Court in a time bound manner and return the child
to his habitual residence in Tirupati, A.P., lndia to the custody of
Petitioner/Father to the like effect of maintaining the status quo ante
situation as it was prevailing prior to kidnap on 15.11.2O1a, pursuant to the
order Dt, 14.09.2018 of this Honble High Court in W.P. No.30964 / 2018
and per the orders Dt,21.O1.2016 and Dt, 01.10.2018 of the Hon'ble 3rd
Circuit Court of Wayne County, Michigan, U.S.A. in Cause No.'1 5- 1O244O-
DM and per proceedings Dt, 30.08.2018 ot the Honble Family Court,
Tirupati, pending adjudication of the child's best interests and custody either
by the parens patriae jurisdiction of this court or the Hon'ble Family Court,
Tirupati and in the event that the minor child is not produced before this
Hon'ble Court within a fixed period, then the child may be produced by due
process of court and that Respondent Authorities be directed to expedite
legal, administrative and diplomatic measures to secure and produce the
child before this Hon'ble Court and as necessary and just against the
Respondent No, 12 i Mother.
lA NO: 1 OF 2018
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may be
pleased to re-open W.P.No. 30964 of 20'18 and cojoin its proceedings with
this writ proceedings. pending disposal of the above Writ Petition and pass
lA NO: 2 OF 2018
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may be
pleased to temporarily appoint the petitioner/father as sole guardian or in
the alternative to appoint Guardian Ad Litem, with sole custody and to order
respondent No.1 2 to return the child to the court appointed guardian to
produce the child before this Honble Court and direct all local and
central/federal law enforcement to assist in transferring the minor child to
court appointed guardian.
lA NO: 3 OF 2018
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may be
pleased to permit personal service to respondent No.12lMother by Email in
above Writ Petition and l.As.,
lA NO: 1 OF 2019
Petition under section 151 cpc praying that in the circumstances
stated in the affidavit filed in support of the petition, the High court may be
pleased to exercise its inherent powers to direct respondent nos.1 to 1 1 to
take immediate measures to issue a red immediate measures to issue a red
corner notice (RCN) against Respondent No.12 within a week.
Counsel for the Petitioner: SRl. K. SRINIVASA REDDy
Counsel for the Respondent Nos. 1,7 to 11.. SRl. B. KRISHNA MOHAN
ASST. SOLICITOR GENERAL
Counsel for the Respondent Nos. 2 to 6: ADVOCATE GENERAL
Counsel for the Respondent No. 12: SRl. T. NAGARJUNA REDDY
The Court made the following: ORDER
?HE HON'BLE ACTING
CHIEF JUSTICE C. PRAVEEN
KUMAR
AND
THE HON'BLE SRI JUSTICE
M. SATYANARAYANA MURTHY
w.P. No.47795 0F 201a
ORDER :(per Hon'bre Actirlg crtief Justice c.prat.,eert Kuntar) One, N.pavan Kumar, filed the present writ petition seeking issuance of writ of Hqbeas Corpus directing respondents 1 to 12 herein to produce the ward N.._lainarayan Sai, born on 2-IO_2O14, before the Court ancl return the child to his habitual residence at Tirupati and lor other consequential reliefs.
2. The petitioner herein, who is the ex-husband of the 12t1, respondent, sought for production of his minor child by name, N.Jainarayan Sai, who was kicL.rappecl on 1S.11.2O1g by the 12th respondent, after trespassing ancl assaulting mother of the petitioner with the hclp of two other hired criminars from his house at Tir,pati, while the petitioner was in ilyderabad to attend the hearing in W.P.No.3O96.I of 2018. It is pteaded that the chilcl was in his lawful custody pursuant to the orcl,:rs passecl bv the Hon'ble High Court on 14.9.2078 in W.p.No.3O964 of 2O1g as well as the custoclv order said to have been passecl by the Court of Michig:rn, USA on 21.1 .2076. In respect of the saicl incide,t, a case in crime No.25O of 2o 18 was registerecl lor the offences p,r-rishable under Sections 452, 324, 363 reacl rvith Section 34 I.p.C. in Tirucl-ranur police Station, Chittoor District and it is pending investigation.
3. The 12rrr responclent, who is allegecl to have kiclnapped the ward, (he1 own son) is working as Assistant professor, pathology and she is said to be residing at 7SOO, Kirby Drive, Apt 721, Hollston, Texas-77O3O, USA.
4. From the events narratecl in the material on record, it appears that the father has been the primary care provider for the boy from October, 2Ol4 to November, 2Oi8 (since mother did not dispute this fact in W.P.No.3O964 of 2018). pursuant to the orders of the Court passed in W.P.No.3O964 of 2O18, the child was in lawful custody of the father. The boy came to India along with his father and was living with his father since June, 2017, with the consent of the mother. While things stood thus, the mother approached the Hon,ble 3*r Circuit Court of Wayne County, Michigan on 16.8.2O18 and also filecl W.P.No.3O964 of 2018 for return of the child, who is in custody of the father. Pulsuant thereto, father was forced to file FCOp/GWOp No. I 1O of 20 18 before the Family Court-cum-V Additional District, Tirupati, complaining threat of kidnap from mother and to declare him as the lawful guardian and for restraining the mother from interferir-rg with peaceful custody of the child. It is further stated that on 72.9.2018 and 14.9.2018 the child was produced by the petitioner before thc Hon'ble High Court, wherein temporary custody of the child was ordcred for two days from 14.9.2018 to 16.9.2O18 with a condition that mother shall deposit her passport and also file an affidavit not to takc the child out of the jurisdiction of the Court and accordingly the child was given to the mother for two days. The child u,as returned to the custody of the father on 16.9.2018 in compliance with the order of the Court. It is stated that on i.1O.2018 the 'r'<r Circuit Court, Michigan passed final orders declining jurisdiction and dismissed mother's case when she tried to change her mind about the child living in lndia with his father. However, on f
-) I 5. i 1 .20 18, it is alleged that the 12rh respondent along with henchmen abducted the child from the house at Tirupati and they took the boy to USA violating the orders of the Court. A criminal case also came to be registered for the offence of criminal trespass, assault and kidnapping on 16.11.2O18. C.B.I. opened Look Out Circular upon request of Superintendent of police, Tirupati. It is stated that between 16.11'2o18 and 19.11.2or8, the mother took the chilcr out of I ndia
5. Counter came to be filed disputing the averments in the writ petition. It is stated that the l2rr, respondent was employed with Henry Ford Hospital, Detroit from the year 2OOZ to 2011 and further employed with MD Anderson Cancer Center from 2011 to 2O13. She took a career break to join the petitioner_husband in Michigan from 2O13 to 2O15. After returning to her profession, the petitioner took full time faculty job at Baylor college. The marriage between the petitioner and the respondent No.12 took place in 12r1, November, 2tl1O in Tirupati and thereafter, the petitioner acquired American citizenship in rhe year 20 13. It is stated that her husband filed a divorce case on S.3.2O l S in Circuit Court for the County of Wayne Family Division, State of Michigan. At the sessions of the said court, helcl in Detroit on 21.1.2016, judgment of divorce was granted to parties and joint custody of the child was given until the child attains the age of 18 years or until further orders of the court. It was further held that parenting time sherll be arternate on a three months basis. On 1Sth May, 2017, the petitioner informed the 12rh respondent that the paternal grandlather of the minor child was ill in India ancr requested that he be able to spencl g to 10 weeks with thc child in India and inclicated that he would return the minor child to the 4 121hrespondent before the commencement of her parental time.
Hence, both parties agreed for travel of minor child to India from l1-6-2077 to August tS, 2Ol7 .
6. It is stated that after reaching India, t1_re petitioner sought pennission from the 12th respondent, for extension of period of time by another three months. The 12th respondent agreed for the same and permitted the petitioner to stay in India along with the child till December, 2077. It is stated that thereafter, the petitioner refused to bring back the child to USA and give custody to this respondent.
This made her to contact FBI and file a missing child complaint with the local agency. It is stated that the petitioner has been issued notice by Interpol, finding him guilty of parental kiclnapping. It is further stated that Circuit Court vide order dated 22.a.2}lg directed the petitioner to appear along with minor child on 1g.9.2org to show as to why action lor the criminal contempt shall not be taken against the petitioner. The order granting divorce by USA on 21.I.2016 clearly required both parties, parental time in USA, which, according to the 12t1, responde nt, is violated by the petitioner. The gist of the counter lLrther indicates that in spite of orders passecl by a Court in USA, the petitioner herein has not complied with the same. lnsolar as taking away of the minor child from the custody of the petitioner, it is stated that she came down to India and gave instructions to her counsel to withdrar.r' W.P. No.30964 of 2Olg, which was dismissed as withdrawn on 15.1 7.2078. It is stated that the child was taken away from the custody of the petitioner from the house of the petitioner at Tirupati, as there is no order operating against her. In fact, it is stated that she was never served with any summons regarding any pending custody suit within India. It is stated by her that she has not violated any
-) , law, either Indian or foreign, in taking minor child to USA. After reaching USA, she filed temporary application before Judicial District Harris County, Texas, wherein the Court vide order dated 2g.1 l.201g issued temporary ex parte order, by which the petitioner was excluded from possession of or access to the minor child. The petitioner was directed to appear before Texas Court on l2.l2.2}la and that on 27.12.2018 the petitioner filed special appearance before the Texas Court.
7. In view of the judgment of the Apex Court in V.Rauichandran (Dr.)(2) a. Ulr-io'r. o.f Indi</ and taking into consideration the proposition laid down therein, it is pleaded that the Courts in U.S. alone gets jurisdiction to decide the custody of the chilcl ancl that any order passed by the Court in Inclia will not be binding on the 12'1, respondent. A reply to the counter came to be filed by the writ petitioner bringing to the notice of the Court, the orders passed by the Courts in U.S., the allegation of suppression of facts, acts ol international forum hunting, the lact of case being clismissed in the Court of Michigan or-r I . 1O.20 18, apart lrom the orders being passed by the Courts in U.S. from rime to time.
8. A rejoinder to the reply came to be filed by the 12rh responcient stating that Texas court continues to have jurisdiction and the word subsisting was mentioned by oversight. The 12rh respondent further submits that she never committed any default and the order passed by the Texas court is matter of record ancl that she never tried to mislead the court. Another reply-affidavit came to be filed on 1g.2.2O1g, enclosing the subsequent developments to the cases in U.S., more particularly, the order dated 1g.2.2O19 passed by the ' [(:oto) r scc t74] () 247th Judicial District Court of Harris County, Texas and also placing on record the motion moved by the petitioner herein before the said Court
9. From the averments and the coLlnter averments the issue that boils down is, whether the child was taken out of the country illegally and as to whether the custody of the child be handed over to the petitioner after ordering the respondent to bring back the child to India. It is also to be noted here that not only the courts in U.S. are seized of the matter, but the matter is also sub judice before a competent civil court in lndia at Tirupati.
10. ln Kanika Goel u. State (NCT of Delhif the Apex Court, while dealing with issuance of habeas corpus relating to the custody of the minor femalc child, observed as under :
"After these decisions, it is not open to contend that the custody of the female minor child with her biological mother woutd be unlawful, for therc is presumption to the contrary. In such a case, the tligh Court rvhilst exercising jurisdiction under Article 226 for issuance of a rvrit of habeas corpus need not make any further enquiry but if it is called upon to consider the prayer for return of the minor female child to the native country, it has the option to resort to a summary inquiry or an elaborate inquiry, as may be necessary in the fact situation of the gi,,,en case. ln the present case, the High Court noted that it lvas not inclined to undertake a detailed inquiry. The question is having said that whether the High Court took into account irrelevant matters for recording its conclusion that the minor female child, who \ras in custody of her biological mother, should be returned to her native country. As observed n Nithgo Anand Raghauan case {2Ol7l I SCC 454i the Court must take into account the totality of the facts and circumstances whilst ensuring the best interest of the minor child. ln Prateek Gupta case [(2018) 2 SCC 3O9] the Court noted that the acljuclicative mission is the obligation to secure the unreserved welfare of the child as the paramount consideration. Further, the doctrine of "intimate and closest concern" are of persuasive relevance, only when the child is uprooted from its native country and taken to a place to encoulrter alien environment, language, custom, etc. with the portent ' 11zo r r; e scc 5781 1 of mutilative bearing on the process of its overall growth and grooming. "
11. ln Dlizabeth Dinshau o. Aruand M. Dinshaw 3 the Apex Court, while dealing with the question as to the custody of the minor child, held that the matter has to be decided not on consideration of the legal rights of parties, but on the sole and predominant criterion of u,hat would best serve the interest and welfare of the minor. In the said case, the Apex Court examined minor boy Dustan in the chambers and found him to be tender in age and totally immature to be able to form any independent opinion of hrs own as to n,hich parent he should stay *ith. It was also a case where the child was brought back to India by the process of illegal abduction by the father. The minor child spent most of his life in the United States of America and he was doing well in school there. The Apex Court held that in their opinion, in the best interest and welfare of the minor child, he should go back to USA and continue his education there in the custocly and guarclianship of the mother to whom such custody and guarclianship has been entrusted by the competent court in that country. However, visiting rights u,ere given to the father.
12. In V.Raui Cho,ndro,n's ccse (l supra) the Three Juclge Bench of the Apex Court, while dealing n,ith the custody of a boy of 7 years, born in USA and a loreign national, in an application filed by the father seeking issuance of habeas corpus for production of minor child and for his custody, observecl as under:
"While dealir.rg with a case of custody of a child removed b-y a parent from one country to another in contravention of the orders of the colrrt \\,here the parties had set Llp their matrimonial home, the court in the countr-v to which the child has been rernoved mLlst first consider the qucstion whether the court could con(lLlct an elaborate enquirl,on the '( 1987) | SCC 42 : 6 question of custody or by deating with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to the child's welfare be investigated in a court in his own country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of the chitd including stability and security, loving and understanding care and guidance and fult development of the child's character, personality and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case."
13. From the judgments refe rred to above it is clear that the paramount consideration for ordering custody of a minor child is welfare of the child. ln V.Raai Chq.ndran,s case (1 supra) the Apex Court held that in the country to rvhich the child has been removed must first consider the question whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the rnatter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to the child's welfarc be investigated in a court in his own country. In V.Rcrvi Chandran's ccse all the orders relating to the custody of the minor child werc passed by the American courts by consent of the parties. The Apex Court, while recording appreciation for the work clone by the officers / officials of CBI in tracing the minor child Adithya and producing him in less than two months of the order passed by the court, laid down certain guidelines, while ordering custody of the child to the mother.
14. In lVtthyc Anand. Ra,gho:vo,n u. Sto:te (NCT of Delhtf the Court was also dealing with a habeas corpus petition filed for the custody of the minor child. It was held that the guardianshio of ' 11zo rz; a scc 454 )
t) mother is utmost signilicance for development of the personality of the girl, especially when she is around 7 years of age, unless circumstances indicating that it is harmful to her. The facts in the said case are somewhat identical to the case on hancl. It was a case where child u,as removed Irom the custody of the father, who is residing in a foreign country ancl brought to India by mother.
Habeas Corpus petition was filed by the father before the Court of India. It was also a case where there was order of a foreign court clirecting the mother to produce the child before it. It would be appropriate to narrate the facts in detail which are as under:
'For considering the factum of interests of the child, the court must take into account all the attending circumstances and totality of the situation. That will have to be decided on case to case basis.
In the present case, we find that the father as well as mother of the child are of Indian origin. They were married in Chennai in tnclia according to Hindu rites and customs. The father, an Indian citizen, had gone to the UK as a student in 2OO3 and was working there since 2OO5. After the marriage, the couple shifted to the UK in early 2OOZ and stayed in Watford. The mother did get an employment in l,ondon in 2OOg, but had to come to her parents, house in Delhi in June 2OO9, where she gave birth to Nethra. Thus, Nethra is an Indian citizen by birth. She has not given up her Indian citizenship. Indeed, the mother, along with Nethra, returned to the UK in March 2010. But from August 2OlO till December 2Oll, because of matrimonial issues between the appeuant and Respondent 2, the appeltant and her daughter remained in India.
It is only after the intervention of and mediation by the family members, the appellant and her daughter Nethra went back to England in December 2O11, more than a year after they had come to India. After returning to the UK, Nethra was admitted to a nurserv school in January 2O 12.
An application for grant of UK citizenship was made on behalf of Nethra in September 2O12 which was subsequently granted in December, 2O12. The father (Respondent 2) then acquired the citizenship of the UK in January 20 1 3. After grant of citizenship of the UK, Nethra u,as admitted to a primary school in the UK in September 201 3 and studied tlrere only till Jul-y 2O 1 5. Since Nethra had acquired British citizenship, the UK Court coulcl exercise jurisdiction in respect of her c11516111 155 r.a.
ll, Significantly, till Nethra returnecl to India along with her rnother on 2-7-2or5, no proceeding of an-v nature came to be filed in the U K Court, either in relation to the matrimonial dispute between the appellant and Respondent 2 or for the custody of Nethra. Further, Nethra is staling in Inclia along with tlte appellant, her grandparents and other famil,v members ancl relatives, unlike in the UK where she live<l in a nucJcar family of the three \\,ith no extended family.She has bcen schooiing here for the past over one.year and has spent equal time in both thc coLrntries out of the first six years. She woulcl be more comfortable and feel secured to live u,ith her mother here, \\,ho can pl-ovicle her love, understanding, care and guidance for her complete tlevelopment of character, personality and talents. Being a girl child, the guardianship of the mother is of utmost significance. Ordinarily, the cLlstocl-y of a "girl,, child who js around seven years of age, must jdeally be !vith hcr mothcr Llnless there are circumstances to indicate that it rvould be harmful to the girl child to remain in custody of her mother lsee Sarifa Sttam:(,, I(2OOO)3 SCC 14, para 6ll. No such material or eviclence is forthcoming in the present case except the lact that the appellant (mother) has violated the order of the uK court directing her to rctrlrn the child to the UK before the stipulate(l date.
Aclmittedl.y, rvhen Nethra rvas in the UK, no restraint order was issue<l l.r-r' air-]. court or authority in the UK in that behalf. She had traveled along rvith her mother from the UK to India on official docurnents. It is a different matter that Responclent 2 alleges that he \!as not informcd before Nethra was removed frorn the UK and brought to Incjia b.t'his rvife (appellant herein).
It is common ground that Nethra is suffering from cardiac disortlcr an<l needs periodical medical revieu,s and proper care and attention. That can be given only by her mother. Respondent 2 (father) is emPlo-yed and may not be in a position to give colnplete attention to his daughter. There is force in the stand taken by the appellant that if Nethra returns to the UK, she ma-y not be able to get meaningful access to providc propcr care ancl attention. Further, she has no intention to visit the UK."
15. Under those circumstances, taking into consideration the health condition of the child and attendant circumstances, the custody ol the child was given to the mother, but, hor,vever, in the very same case in para 67, the Court held as under
:
facts in all thc four cases primarill, relieci upon "The by Respondent 2 il.r our opinion, necessitated the Court to issue direction to return the child to the native state. That does not mean that in tl deserwing cases the collrts in India are denuded from declining the relief to return the child to the native state merely because of a pre_existing order of the loreign collrt of competent jurisdiction. That, horvever. rvill have to be consiclerecl on case to case basis be it in
- a summary incluiry or an elaborate inquiry. We do not wish to dilate on other reported jttdgments, as it would result in repetition of similar position ancl onlv burden this judgment.,,
16. Therefore, from the judgment referred to above, it is clear that in deserving cases the courts in India are not clenuded lrom cleclining the relief to return the child to the native state merely bec:ruse of a pre-existing order of the foreign court of competent jurisdiction, but the Apex court categorically held that the issue has to be clecided on case to case basis
17. Similarly, in Surya Vadanan o. Stolte of T.N.s the Apex Court, while dealing with the custody of a minor girl who was British citizen by birth, held as uncler :
"We have gone through the orders and clirections passecl by the foreign court and find that there is no final determination on the rssue of custody and what the loreign court has required is for Ma-yura to present herself before it along rvith tlte t\\,o children u,ho are u,arcis of tl-re foreign court ancl to tnake her submissiorrs.
The Ioreign court has not taken any final decision on the custody of the children.
It is quite possible that the foreign collrt ma-y come to a concllrsion, after l)earing both parties that the cllstocly of the children shoulct be with Mayura ancl that they should be with her in India. The foreign court may also come to the conclusion that the best inter_ests ancl rvellare of the children requires that they ma1' remain in the uK either under the custod-y of Surya or Mayura or their joirrt custocl-y or as wards of the coLlrt during their minorit],. In other $,ords, there are several options belbre the foreign court and $,e cannot jump the gun and conclude that the foreign court rvill not come to a just an.l equitable decision which woulcl be in the best interests an.l \\,elfare oI the two children of the couple.,,
18. At this stage it is to be notecl that India is not a signatory to the Hague conventio,r oI 19go on civil aspects of Internationar child Abduction. In non-convention countries, law is that the court in the '11:ot:.y S SCC 450 j T') country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and rcckon the order of the foreign court as only a factor to be taken into consideration, unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare. In exercize of surnmary jurisdiction, the Court must be satisfied and of the opinion that the proceeding instituted before it u'as in close proximity and filed promptly after the child was removed from his/ hcr native state and brought within its territorial jurisdictior-r, the child has not gained roots here and further that it will be in the child's welfare to return to his native state because of the difference in language spoken or social customs and contacts etc. In such a case, the Court need not resort to an elaborate inquiry into the merits of the paramount welfare of the child but leave that inquiry to the foreign Court by directing return of the child. However, in exceptional cases, the Court can still refuse to issue direction to return the child to the native state and more particularly in spite of a pre-existing order of the foreign Court in that behalf, if it is satisfied that the child's return may expose him to a grave risk. This means that the Courts in India, within whose jurisdiction the minor has been brought must "ordinarily" consider the question on merits, bearing in mind the welfare of the child as of paramount importance whilst reckoning the pre-existing order of the foreign Court if any as only one of the factors and not get fixated therewith. lyide Nithya Anand Raghauctn u. State (NC'I' of Delhi)1.
19. ln Alekhga Yalqrnq.nchlli v. State of And.hra pro;d.esh and others 6 a Division Bench of High Court, while dealing with unlawful " 20 tz 1+y eLo t+s 1ou;
l3 removal of chilcl from jurisdiction of the High Court, when a dispute regarding custody of child under Guardians Act pencling before the Civil Court within supervisory or superintendence jurisdictional area of High Court, observed as under :
"The law is thus well settled that the dispute before the civil Court under Guardians Act is concerned with the final child custody rights of the parents whereas habeas corpus proceeding deals with protection of the person who is held in unlawful custody. A child is not a property or a commodity. When the parents complain unlawful removal from its jurisdiction the court is bound to issue habeas.corpus exercising parens patiae jurisdiction. Both the proceedings are summary but the proceedings under Guardians Act are substantive whereas habeas corpus proceedings are procedural. Even if the child is not within the territorial jurisdiction of the Court, if the parties had already approached a competent civil Court which is within the supervisory or superintendence jurisdictional area of the High Court, it is entitled to assume jurisdiction. The factum of relocation of a child is no ground to oust habeas corpus jurisdiction of the High Court.
We, therefore, hold on the issue against the third respondent and in favour of the petitioner.',
20. At this stage it will also be proper to refer to the judgment in Prateek Guptq a. sh pi GuptaT. It was arso a case where the petitioner filed a writ of habeas corpus for custody of the child.
Dealing with the issue as to the manner in which the jurisdiction r.lnder habeas corpus is to be exercized i.e., when question is one of immediate restoration of cu stody/ repatriation oI child, the Apex Court after referring to various juclgments including Arathi Bandi u. Bandi Jagadrakshaka rao [(2013) iS SCC 79O]; Shilpa Aggaru.nl u.
Auiral Mittal [(2OlO) 1 SCC 59i]; NithAa Anand Raghauan u. State (NCT of Delhi) l(2ot7l 8 SCC 4541; Anand Raghauan u. State (NCT of Delhi) {(2016) 231 DLT S96t; Elizabeth Dinshr:u.t u. Aruand M.Dinshau [(1987) 1 SCC 42]; ancl V.Raui Chanclran (2) u. tJnion of India J(2O1O) I SCC 174] came to the following conclusion :
' [(:o r ri) : scc 3o9l l4 "The gravamen of the judicial enunciation on the issue of repatriation of a child removed from its native country is clearly founded on the predominant imperative of its overall well-being, the principle of comit' of courts, and the doctrines of "intimate contact and closest concern" notwithstanding. Though the principle of comity of courts and thc aforementioned doctrines qua a foreign court from the territory of rvhich a child is removed are factors rvhich deserve notice in decicling the isstre of custody and repatriation of the chitd, it is no longer res integra that the ever-overriding determinant u,ould be the welfare and interest of the child. ln other lvords, the invocation of these principles/ doctrines has to bc judged on the touchstone of myriad attendant facts and circumstances of each case, the ultimate live concern being the welfare of the chilcl, other factors being acknowledgeably subservient thereto. Though in the process of adjudication of tlte issue of repatrialion, a court can elect to adopt a summary enquiry and order immediate restoration of the child to its native country, if the applicant/ parent is prompt and alert in his/her initiative and the existing circumstances ex facie justify such coLlrse again in the ovene.helming exigency of the rvelfarc of the child, such a course could be approvablc in law, if an cffortlcss discernment of the relevant factors testify irreversible, adverse ancl prejudicial impact on its physical, mental, psychological, social, cultural existence, thus exposing it to visible, continuing and irreparable detrimental and nihilistic attenuations. On thc other hand, if the applicant / parent is slack and there is a considerable time lag between the removal of the child from the native country an.l the steps taken for its repatriation thereto, the court would prefer an elaborate enquiry into all relevant aspects bearing on the child, as meanwhile with the passage of time, it expectedl-y hacl grou.n roots in the country and its characteristic milieu, thus casting its influence on the process of its groominla in its fold. "
21. From the judgment of the courts referred to above and the ratio laicl down, it is very clear that welfare of the child is paramount consideration. The principles/doctrines which have been laid down has to be judged on the touchstone of myriad attendant facts and circumstances of each case, the ultimate live concern being the welfare ol the child, other factors being acknowledgeably subservient thereto.
22. Therefore, it is now to be seen as to whether in the instant case custody of child can be awarded to the father. Admitted facts, AS t5 narratecl earlier, would indicate that for a major period of the time, the boy, who was born on 2.1O.2Oi.4, was with father, It is also brought on record that pursuant to the orcier passed by the 3,(t Circuit Court of Wayne County, Michigan, the chikl came to India th his father and was living with the father since June r,r,i 2O 17, with the consent of the mother. Long thereafter, when the fathcr refuserl to take back the child to U.S., mother came down to India and took steps for taking back the child to u.s. writ petitions came ro be filed by both of them. W.p.No.30964 of 201g was filed by the mother for issuance of writ of habeas corpus. In the said case a Division Bench ol the High Court of judicature at Hyderabacl for the State ol Telangana and for the State of Andhra pradesh by its order dated 14.9.2O1A gave a direction stating rhat if temporary custocly of minor son is given to the petitioner therein i.e., mother, she will deposit her passport in the court and she will not leave the jurisdiction of the court. Accordingly, counsel for the respondent Iairly agreecl for temporary custody of the chilcl by the petitioner therein and handing over the child to respondent at 5 pM on Sunday i.e., 16.9.201g.
Pursuant there to on 14.9.2O1g, the passport ol. the petitioner was depositeci and temporary custody of the child was given to mother.
She returned the child to the respondent by 5 pM on 16.9.2O1g, as directed by this Court. Accorclingly, the passport was directed to be returned to the petitioner therein i.e., mother.
23. However, on 15. I l.2O 1g the mother is said to have forcibly abclucted the chilcl from the house of her husband at Tirupati u,ith the help of her henchmen ancl then took the boy to USA. In the saicl process, the persons, r.l.ho trespassecl, c:rused injuries to the mother of the petitioner, leading to registration of criminal cases which is l() pcnding investigation. At that stage, W.p.No .4Z7gS of 2O1g came to bc filed by the father to issue habeas corpus, to produce the ward i.e., N..Jainarayan Sai before thc Hon,ble High Court in time bound manner and return the child to his habitual residence at Tirupati. Record also discloses filing of FCOp/GWOp No.l1O of 2O1g by the pctitioner herein before the Family Court_cum-V Additional District Judge, Tirupati, complaining threat of kidnap liom mother and to declare him as the lawful gr,rardian and for restraining the mother from interfering rvith peacelul custody of the child. From the narration of cvents, it clearly indicates that while order of the High Court was in force, the child was forcibly taken au,ay to USA by the mother. Though it is pleaded that no order is in force for the reason that thc writ petition was withdrawn on 1s. I 1.20 1g, but this rvithdrawal is subject matter of clispute, for the reason that the same is being done only with an intention to get away with the order passed by the High Court in ordering custody of the bov to the father.
24. the record clearly shows that on the day when the Hor,l,ever, writ petition was withdrawn, the boy was abducted from the lawful guardiai-rship of his grand mother. It is no doubt true that orders are passed by the Courts in U.S., but, at the same time, the Courts in India, while recognizing the custody of the boy with the father, granted interim custody to the father, meaning thereby, the boy is in lawful custody of the father in India. Forcible taking away of the Lroy from the custody of his grand mother, is not permitted by any law or by any order passed by the Courts in U.S. In fact, there is no answer from thc counsel when the Court posed a query as to how the mother came into custody of thc boy on 1s. r 1.201g. since November 20rg, the boy is in the custody of the mother and father has been visiting t7 USA fighting out the litigation in the said courts. At the same time, the appropriate civil Court in India is also seized of the matter with regard to the custody of the child vide FCOP/ GWOP No. 1 10 ol 2O 1 8 before the Family Court at Tirupati.
25. Since the boy has been forcibly taken away without any lawful authority or with the aid of any orcler passed by the Indian Court and since the u,elfare of the child is a paramount consideration. it will be just and proper for us to direct the mother to subject hersell-to the jurisdiction of the civil court in FCOP/GWOP No.11O of 2O18 before the Family Court-cum-V Additional District Judge, Tirupati, and produce the chilcl before the said court. In which event, the said Court shall examine the boy, father, mother and all concerned and then pass appropriate orders. In our view, deciding of the issue by the appropriate civil court is very much essential, -ore =,r, in view of the juclgmer-rt of the division bench of this court in Alekhga Yalannq.nchili's case, where the court held that even it the child is not within the territorial jurisdiction of the court, if parties have approached the civil court, r,l,hich is u,ithin the supervisory or superintendence jurisclictional area of High Court, it is entitled to assume jurisdiction.
26. In the result, the writ petition is allou,ed, directing the 12th respondent to produce N.Jainarayan Sai, a minor child aged about 5 years, son of the petitioner and the 12th respondent, before the Family Court at Tirupati \{'ithin 8 to 12 weeks from the date of receipt of a copy of this order. On which, the concerned civil court shall decicle the issue relating to interim custody of the child pencling O.P. as u,ell the O.P. in accordance with law at the earliest.
n{
27. The Writ petition, witl-r the above directions, is allou'ed' No order as to costs.
Consequently, miscellaneous applications pending if any, shall also stilt-tcl closcd.
.'r-;.,€_rr<ll!-+-
Sd/- K. TATA RAO ASSISTANT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1 The P_rincipal Home Secretary IVlinistry of Home Affairs, Union of lndia, New Delhi
2. The Principal Home Secretary, Home Department, State of Andhra Pradesh, Velagapudi, Andhra Pradesh
3. The Director General Of Police, AP DCp Head euarters, Mangalagiri, Andhra Pradesh
4. The Additional Director ceneral Of Potice (CtD), Ap DGp Head Quarters, Mangalagiri. Andhra Pradesh
5. The Superintendent of Police, Tirupati Urban District,Tirupati, Andhra Pradesh
6. The Circle lnspector, Tiruchanur police Station, Tiruchanur, Andhra Pradesh
7. The Assistant Director, (NCB (lnterpol) New Delhi) Central Bureau of lnvestigation, New Delhi
8. The Under Secretary (Legal), lS-ll Division,Ministry of Home Affairs, GOl, New Delhi g Ihg Principal Foreign Secretory Ministry of External Affairs, Union of lndia, New Delhi '10. The Under Secretary (Extradition) Consular, passport and Visa (CpV) Division, GOl, New Delhi
11. RegionqL Passport Officer, State of Andhra pradesh Visakhapatnam, Andhra Pradesh-530009
12.One CC to Sri. K. Srinivasa Reddy, Advocate (OpUC)
13. One CC to Sri. B. Krishna Mohan, Asst. Solicitbr Gen6ral (OPUC)
14. One CC to Sri.T. Nagarjuna Reddy, Advocate (OpUC) 1 5. Two CCs to the Advocate Generai, High Court'of Andirra pradesh. (our)
16.Two CD Copies.
PM NM HIGH COURT DATED:121O412019 ORDER WP.No.47795 ol 2O18 Allowing the WP Without costs.