Karnataka High Court
Smt Latha vs Sri Sachin on 22 October, 2018
Bench: B.Veerappa, H.T.Narendra Prasad
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22 N D DAY OF OCTOBER, 2018
PRESENT
THE HON'BLE MR.JUSTICE B.VEERAPPA
AND
THE HON'BLE MR.JUSTICE H.T. NARENDRA PRASAD
WPHC No.64 OF 2017
BETWEEN:
SMT LATHA W/O MR.SACHIN NAD
AGED ABOUT 38 YEARS
PRESENTLY R/AT BEERESHWARA NAGAR
BEHIND PETROL BUNK
HURALIKUPPI RANEBENNUR
HAVERI DISTRICT-581 115.
... PETITIONER
(By Sri. G.K. HIREGOUDAR, ADV.)
AND:
1. SRI SACHIN
S/O MR.SUBASH BABU NAD
AGED ABOUT 39 YEARS
R/AT MIG 66, HUDCO COLONY
JALANAGAR, BIJAPUR-586 109
2. SUPERINTENDENT OF POLICE
HAVERI HAVERI DISTRICT-581 110
3. INSPECTOR OF POLICE
RANEBENNUR TOWN POLICE STATION
HAVERI DISTRICT-581 115.
4. THE STATE OF KARNATAKA
REP BY ITS SECRETARY
DEPARTMENT OF HOME AFFAIRS,
:2:
M.S. BUILDING, VIDHANA VEEDHI,
BENGALURU-560001.
5. THE SECRETARY,
MINISTRY OF HOME AFFAIRS,
NORTH BLOCK, CENTRAL SECRETARIATE,
NEW DELHI-110001.
... RESPONDENTS
(By Sri.C.S. PATIL, AGA FOR R2-R4,
Sri. VENKATESH M. KHARVI, ADV. FOR R5.)
THIS WPHC IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, IS FILED BY THE
PETITIONER PRAYS THAT THE HON'BLE HIGH COURT BE
PLEASED TO ISSUE A WRIT OR ORDER OR DIRECTION IN
THE NATURE OF HABEAS CORPUS, DIRECTING THE
RESPONDENTS TO PRODUCE THE MINOR CHILDREN
NAMELY TANVI AND SHAAN IMMEDIATELY BEFORE THIS
HON'BLE COURT.
THIS PETITION COMING ON FOR ORDERS,
THIS DAY, B.VEERAPPA J., MADE THE
FOLLOWING:
ORDER
The petitioner filed the present Habeas Corpus petition directing the respondents to produce the minor children namely Tanvi and Shaan immediately before this Court.
2. It is the case of the petitioner that the marriage between the petitioner and the first respondent took place on 17.11.2004 at Ranebennur. :3: The Respondent is a Civil Engineer. Out of their wedlock, a female child was born on 13.09.2005 and was named as Tanvi. After two years of marriage, the respondent moved to Dubai to work in a Company. After going to Dubai, the respondent started harassing the petitioner for no reasons and had been addicted to many bad habits including alcohol, drugs. Besides, the respondent has been indulging too much into sexual abuse and many extra marital affairs with other women. The petitioner adjusted herself with the respondent. Subsequently, a male child was born on 22.06.2008 by name Shaan. The respondent changed his job in the year 2007 and went to Australia, wherein, he kept on changing his jobs in different companies and presently he is working with Road and Maritime Company as Road Construction Manager in Sydney, Australia. Even after the birth of two children, the respondent continued to abuse the petitioner sexually and tortured her physically and mentally. In fact, the respondent started abusing the petitioner for not having started earning by :4: getting employment. She had unbearable torture. Therefore, the petitioner was constrained to start working in a private supermarket in spite of the small children whom she had to take care personally.
3. In spite of the same, the respondent began to increase the harassment day by day, the petitioner stopped taking food on time and also started worrying too much about the future of herself and the children in the hands of the irresponsible husband i.e., respondent. Due to the same, she became sick and the local doctor in Sydney advised her to take complete rest at her mother's place. Therefore, the respondent brought her to India, wherein, the petitioner stayed at her mother's place for about two months. During the said period, the respondent used to be always around the petitioner so as to the petitioner should not talk anything ill about the respondent with her parents. After taking rest, the petitioner and the respondent returned to Australia. Even later, the petitioner found that the attitude of the :5: respondent became still worse and he started openly indulging with other women for his sexual needs. When the same was questioned, the respondent use to beat her and torture her mentally. Therefore, the petitioner requested the respondent to send her back to India. However, the respondent brought the petitioner and her children to India on 14.04.2017. It was surprising to find that the respondent kept the passports and boarding passes of the petitioner and her children with himself. A few days later, the respondent came to the petitioner's parents house where the petitioner along with her children has been staying and started demanding the petitioner to handover the custody of the children. The things should thus, the respondent took the children forcefully and went to an unknown place. Therefore, the petitioner filed complaint before the jurisdictional police, who in fact, refused to take her version of the complaint but instructed her to write their own way, favourable to the Respondent. However, the same was registered and an :6: FIR was filed before the Additional Civil Judge (Sr.Division) and CJM Court, Ranebennur, Haveri District. The respondent Police have not taken any effective measures to trace the children. Hence, the present petition filed for relief sought for.
4. The respondent-State Nos.2 to 5 filed counter affidavit and specifically stated that after receipt of the complaint from the petitioner, the jurisdictional police have registered the case in crime No.46/2017 against the first respondent-husband and other accused persons for the offence punishable under Sections 354B, 109, 498A, 506, 504, 143, 323, 448, 147, 149 of IPC and the same was forwarded to the Judicial Magistrate immediately. It is further contended that the petitioner in her complaint has seriously apprehend that her husband - first respondent may flee to Austrailia along with their children. Complaint also states that there are serious matrimonial dispute between the petitioner and her husband and also :7: quarrel regarding custody of their children. On the same day, the Police Sub-Inspector along with the Police Constable deputed to the Bangalore Airport to see that the first respondent is prevented fleeing from the country along with the children. The Police after reaching the Airport personally informed the Airport Police and gave a letter to them requesting them to stop the first respondent from traveling abroad. Subsequently, on 19.04.2017 the Police Sub-Inspector, Ranebennur deputed a Police Constable one Kariyappa to the Foreigners Regional Registration Office, Bureau of Immigration, Government of India. On 20.04.2017 he gave a letter dated 19.04.2017 to stop the first respondent from traveling to abroad. Assistant Foreigners Regional Registration Officer has sent a letter through e-mail to the office of Police Sub-Inspector, Ranebennur informing that the Look Out Circular has to be forwarded through the Superintended of Police to the Deputy Director, Immigration. A copy of the said letter dated 20.04.2017 is also produced as per :8: Annexure-R3. Thereafter, the Assistant Sub Inspector of Police K.C. Komalachar, deputed to Bengaluru on 21.04.2017 to secure the accused persons and to submit report on 24.04.2017. On 03.05.2017, the Superintended of Police, Haveri District, Haveri issued a Look Out Circular (LOC) in respect of the first respondent. Investigation revealed that on 20.04.2017 at 11.50 A.M. itself i.e., the very next morning of the Registration of the FIR, the first respondent along with the children had left the country from Mumbai Airport. Therefore, the Head Constable one Mr. Beeresh Badappalavar deputed to Vijayapura to arrest the other accused persons in Crime No.46/2017. The Head Constable visited the residence of the accused persons in the said crime and found the door was locked and they are absconding. The Police Sub-Inspector along with the staff also visited Vijayapura on 06.05.2017 and search the whereabouts of the other accused persons, but was not able to apprehend them. Subsequently, the Circle Inspector has filed an application on 04.05.2017 :9: before the Judicial Magistrate, Ranebennur requesting to issue a warrant to arrest the first respondent, who is now residing at Sydney, Australia. However, the Jurisdictional Magistrate issued a warrant to arrest the first respondent Sachin Nad to his local address on 04.05.2017. Since, the first respondent residing at Australia, the Superintendent of Police, Haveri issued a Communication dated 05.05.2017 to the Additional Director General of Police and Interpol Liaison Officer, CID, Bengaluru requesting to forward a copy of the Habeas Corpus Petition to Australia through the National Crime Branch Interpol on 05.05.2017. The Additional Director General of Police and Interpol Liaison Officer, CID, Bengaluru wrote a communication dated 08.05.2017 to the Assistant Director, CBI, National Crime Branch Wing, New Delhi requesting to locate the first respondent and to send a copy of the Habeas Corpus Petition to the National Crime Branch, Australia for necessary action. Subsequently, the State Government filed a memo dated 07.10.2017 that for : 10 : holding departmental enquiry against Ranebennur Town P.S. Ex.P.S.I. Bankapur P.S. along with article of charges issued under Rule 6 of Karnataka State Police (Disciplinary Proceedings) Rules.
5. The Family Court, Australia at Parramatta pleased to pass an order dated 23.08.2017 in file No.PAC2265/2017 filed by the first respondent-father that the children Tanvi Nad and Shaan Nad are permitted to live with the first respondent-father. The copy of the order passed by the Family Court of Australia at Parrammatta produced and the same is also handed over to the present petitioner. The State has also furnished the certificate of Australian citizenship of Tanvi. The Status report by way of Affidavit dated 30.10.2017 produced by the State clearly depicts that the first respondent-husband Sachin Nad Nationality (Australian) and confirmed the status as married. The State also produced the passport details of the present petitioner, nationality shows that she is : 11 : also Australian citizenship. The State also produced the Australian citizenship certificate of minor children of the petitioner and the respondent i.e., Tanvi Nad and Shaan Nad by the Commonwealth of Australia issued by the Ministry of Immigration and Citizenship on 18.07.2012. The said certificates, passport of both the petitioner and the respondent, the certificates issued by the Australian country Immigration issued by the Immigration Officer clearly depicts that the present petitioner and the first respondent and their children are the citizens of Australia. Therefore, the State sought to dismiss the petition on the ground that the present habeas corpus petition is not maintainable in India and they are not in illegal custody in view of the order passed by the Family Court, Australia.
6. We have heard the learned counsel for the parties to the lis.
7. Sri. G.K. Hiregoudar, the learned counsel for the petitioner contended that on the basis of the : 12 : complaint filed, the jurisdictional Police registered FIR against the respondent, but, the respondent has been highly influential with money, muscle and political influence, the respondent Police are not taking any effective measures to trace the children and bring back them. He further contended that the petitioner was seriously apprehended that her husband-the first respondent may take away her children and her daughter may be abused sexually by the respondent. The in action on the part of the State not producing the children of the petitioner before this Court clearly indicates that the State has not acted in accordance with law within the time. Therefore, he sought to allow the petition.
8. Per contra, Sri. C.S. Patil, the learned Government Advocate vehemently contended that the very petition filed by the petitioner giving wrong address within the jurisdiction of the Huralikuppi, Renebennur Taluk, Haveri District is clearly indicates that the : 13 : petitioner has not come to the Court with clean hands and she has suppressed the material facts. Though she is the citizen of Australia as per the passport produced, she has filed the present petition only to misuse the habeas corpus petition. Knowing fully well the order passed by the Family Court, Australia in favour of the respondent handing over the custody of the children, no steps has taken by the petitioner who is also party before the Australian Court for the custody of the children and filed the present petition and she has misused the State machinery for personal gain which is impermissible. Therefore, he sought to dismiss the petition.
9. He further contended that on the basis of the complaint lodged, by the jurisdictional Police promptly registered the criminal case and taken all possible measures to trace out the children and thereafter coming to know that they are the citizens of Australia and the Family Court at Australia has also passed the : 14 : order dated 23.08.2017 still the petitioner is pursuing this matter which is nothing but abusing the process of law. Therefore, the learned Government Advocate sought to dismiss the petition with exemplary costs.
10. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
11. In view of the seriousness of the matter, on the basis of the complaint made by the petitioner, the jurisdictional Police have registered a criminal case in crime No.46/2017 and made all possible efforts to prevent the respondent fleeing from the India to Australia and taken all possible steps. The material on record clearly depicts that the State used the machinery to prevent the respondent and his minor children to flee from India to Australia. The Annexures produced along with affidavit clearly depicts that the State has taken all steps to prevent the respondent.
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12. The material on record clearly depicts that it is the civil dispute between the wife and husband and both the petitioner, the respondent and their children are citizens of Australian as per the details of the passport, as per the citizenship certificates issued by the Australian Government.
13. The petitioner knowing fully well that she is also citizen of Australia along with her husband and children, she filed the present habeas corpus petition before this Court on 02.05.2017 and successfully dragged the proceedings. The family Court, Australia after hearing both the parties, has passed the order which reads as under :
"1. That the children T anv i Nad born 13 Septe mber 2005 and Shaan Nad bo rn 22 June 2008 (' the children') live with the f ather.
2. That the f ather have sole parental respons ibil ity f or the children.
3. The children spend time with the Respondent mo ther in Aus tralia as agreed be twee n the par tie s in writing.
4. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the : 16 : oblig atio ns these orders create and the particulars of the consequences that may f ollo w if a person contravenes these orders and de tails of who can ass is t parties adjus t to and co mply with an order are se t out in the Fac t Shee t attached here to and these particulars are included in these orders.
NOTAT ION :
A: I direc t that, in the event that the f ather f ail to f urther pros ecute his f inal orders application or in the event that the f ather withdraws that f inal orders application, the Independen t Chil dren's Lawyer have to appro ach the co urt to have the matte r res tored to the lis t to g ive cons ideratio n to discharg ing the in terim orders made today. "
14. The documents produced by the State clearly depicts that the respondent-husband has obtained custody of their children legally from the Family Court, Australia. Till today, the petitioner has not filed any application to take any necessary legal steps for the custody of her children instead of taking appropriate legal steps before Australian Court, the petitioner has filed the present petition before this court, is nothing but misuse of powers of this Court in habeas corpus petition, which is impermissible.
: 17 :
15. It is well settled that it is the duty of the Court to issue writ to safeguard the freedom of the citizen against arbitrary and illegal detention. Habeas corpus is a remedy designed to facilitate the release of persons detained unlawfully, not to punish the person detaining and it is not, therefore, issued after the detention complained of has come to an end. It is a remedy against unlawful detention. It is issued in the form of an order calling upon the person who has detained another, whether in prison or in private custody, to 'have the body' of that other before the Court in order to let the Court know on what ground the latter has been confined and thus to give the Court an opportunity of dealing with him as the law may require. By the writ of habeas corpus, the Court can cause any person who is imprisoned to be brought before the Court and obtained knowledge of the reason why he is imprisoned and then either set him free then and there if there is no legal justification for the imprisonment, or see that he is brought speedily to trial. Habeas Corpus : 18 : is available against any person who is suspected of detaining another unlawfully and not merely against the police or other public officers whose duties normally include arrest and detention. The Court must issue it if it is shown that the person on whose behalf it is asked for is unlawfully deprived of his liberty.
16. The writ be addressed to any person whatever-an-official or a private individual who has another in his custody. The claim (for habeas corpus) has been expressed and pressed in terms of concrete legal standards and procedures. Most notably, the right of personal liberty is connected in both the legal and popular sense with procedures upon the writ of habeas corpus. The writ is simply a judicial command directed to a specific jailer directing him or her to produce the named prisoner together with the legal cause of detention in order that this legal warrant of detention might be examined. The said detention may be legal or illegal. The right which is sought to be enforced by such : 19 : a writ is a fundamental right of a citizen conferred under Article 21 of the Constitution of India, which provides that 'no person shall be deprived of his life or personal liberty except according to procedure established by law.'
17. In the present case, the material on record clearly depicts that the State has promptly taken action to prevent the respondent fleeing from this country to Australia along with the minor children. It is also not in dispute that the present petitioner is also the citizen of Australia along with her husband and children. She has come to the Court with "unclean hands". She has also misused the State machinery. The act of the petitioner is nothing but an attempt to overreach the Court and is nothing but an attempt to mislead the Police by giving wrong address of Ranebennur taluk, the address of the parents.
18. It is our experience that this type of frivolous writ petitions in the recent days is on the rise. Because, : 20 : it is a habeas corpus petition and the personal liberty of a citizen is involved, this Court being the Constitutional Court has to reach out to the rescue of those innocent people. We are giving top priority to those cases. We are putting pressure on the Police to investigate and secure and release these persons. But, we find from our experience that in most of the cases, there is no muchless sufficient cause for the parties to approach this Court. Litigants and members of the Bar appear to have not understood the importance and seriousness of this extraordinary writ of habeas corpus. It is high time that we have to send a clear message that the Courts will not encourage such litigants and tolerate such abuse of the judicial process.
19. Admittedly, in the present case, the petitioner knowing fully well that she is also citizen of Australia along with her husband and children and filed the habeas corpus petition against the husband and misused the State machinery for more than one year : 21 : which is nothing but the abuse of the judicial process. The Hon'ble Supreme Court considering the abuse of the judicial process in the case of Kishore Samrite V/s. State of Uttar Pradesh and Others reported in (2013)2 SCC 398 held as under :
32. The cases of abuse of process of court and such allied matters have been arising before the courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly state the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases.
These are :
32.1. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts and came to the courts with "unclean hands". Courts : 22 : have held that such litigants are neither entitled to be heard on the merits of the case nor are entitled to any relief.
32.2. The people, who approach the court for relief on an exparte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where then litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.
32.3 The obligation to approach the court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.
32.4. Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have overshadowed the old ethos of litigative values for small gains.
32.5. A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.: 23 :
32.6. The court must ensure that its process is not abused and in order to prevent abuse of process of court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the court would be duty-bound to impose heavy costs.
32.7. Whether a public interest is involved, the court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.
32.8. The court, especially the supreme Court, has to maintain the strictest vigilance over the abuse of process of court and ordinarily meddlesome bystanders should not be granted "visa". May societal pollutants create new problems of unredressed grievances and the court should endure to take cases where the justice of the list well justifies it.
20. It has been consistently stated by this Court that the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the : 24 : parties, as truth is the basis of the justice-delivery system.
21. With the passage of time, it has been realized that people used to feel proud to tell the truth in the courts, irrespective of the consequences but that practice no longer proves true, in all cases. The court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost but it has a legal duty of its own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehood, must be appropriately dealt with. The parties must state : 25 : forthwith sufficient factual details to the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the court with clean hands. It is the bounden duty of the court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorized or unjust gain to anyone as a result of abuse of process of court. One way to curb this tendency is to impose realistic or punitive costs.
22. Admittedly in the present case, the petitioner is a foreign citizen of Australia along with her husband and children. The very habeas corpus petition filed before this Court is nothing but misuse. Though the jurisdictional police had taken prompt action on the complaint made by the petitioner, she should have sought for invoke legal available remedy to her before the Family Court at Australia, instead of the same, she filed habeas corpus petition before this Court and : 26 : misused the State machinery for more than one year. Therefore, the petitioner is not entitled for any relief before this Court under Article 226 and 227 of Constitution of India.
23. The orders sheet maintained by this Court clearly depicts that the petitioner not only misused the State machinery also misused the precious time of this Court and dragged the matter for more than one year. If litigants like the petitioner is encouraged it is nothing but abuse of process of this Court. Even though the habeas corpus petition filed by the petitioner, who is citizen of Australia is not maintainable as she failed to prove the illegal detention of their children by her husband. Still she successfully dragged the matter for more than one year and misused not only the State machinery and also the precious time of this Court.
24. In view of the aforesaid reasons, we are of the view that we should impose realistic and punitive costs to curb this tendency and it would be proper to : 27 : dismiss the writ petition by imposing costs of Rs.50,000/- (Rupees fifty thousand only) on the petitioner payable to the Advocates' Association Library Fund, High Court of Karnataka, Dharwad Bench, Dharwad within two months from the date of receipt of the copy of this order, failing which, the Additional Registrar General of this Court shall send the copy of this order to the Deputy Commissioner, Haveri for recovery of the said amount as land revenue.
Accordingly, writ petition is dismissed.
Sd/-
JUDGE Sd/-
JUDGE MNS/