Gujarat High Court
Murtaza Quaid Mahuwala vs State Of Gujarat on 19 February, 2020
Equivalent citations: AIR 2020 GUJARAT 100, AIRONLINE 2020 GUJ 120
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, V.P. Patel
R/SCR.A/10944/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 10944 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE V.P. PATEL
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
================================================================
MURTAZA QUAID MAHUWALA
Versus
STATE OF GUJARAT & 3 other(s)
================================================================
Appearance:
MR NACHIKET A DAVE(5308) for the Applicant(s) No. 1
MR BJ TRIVEDI(921) for the Respondent(s) No. 4
MR JT TRIVEDI(931) for the Respondent(s) No. 4
MR SH LIGHTWALA(1767) for the Respondent(s) No. 4
MS JIGNASA B TRIVEDI(3090) for the Respondent(s) No. 4
MR. RONAK RAVAL, APP for the Respondent(s) No. 1
UNSERVED WANT OF TIM(31) for the Respondent(s) No. 2,3
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE V.P. PATEL
Date : 19/02/2020
CAV JUDGMENT
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R/SCR.A/10944/2018 CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE V.P. PATEL)
1. The Petitioner has filed this Petition under Articles 14, 19, 21 and 226 of the Constitution of India claiming the reliefs in terms of paragraph 23 as under:
"(a) This Hon'ble Court may be please to issue a writ of habeas corpus or a writ in nature of habeas corpus or any other appropriate writ, order or direction against the Respondent No.4 to produce the minor child, Master Mustali before this Hon'ble Court on the date and time as may be directed by the Hon'ble Court and in the event if the Respondent No.4 fails to do so, the Respondent Nos. 2 and 3 be ordered and directed to take the custody of the child from the Respondent No.4 and produce the minor child, before this Hon'ble Court, and thereafter hand the custody of the child to the Petitioner.
(b) For a writ of Habeas Corpus and direction under Article 226 of the Constitution of India, in terms of prayer clause (a) above.
(c) For the reliefs as claimed for in prayer clause(a) above.
(d) That pending hearing and final disposal of this Petition, the Respondent No.4 be restrained by an Order and Injunction of this Hon'ble Court from removing the minor child from the jurisdiction of this Court and depositing the passport of herself and the minor child, in this Court.
(e) For ad-interim reliefs in terms of prayer clause (d) above.
(f) For costs of this Petition.
(g) For such other and further reliefs as the nature and circumstances of the case may require."
2. Heard learned Advocate Mr. Nachiket Dave for the Petitioner, Page 2 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENT learned Advocate Mr. Brijesh J. Trivedi for Respondent No.4 and Mr. Ronak Raval, learned APP for the Respondent - State of Gujarat.
3. Facts of the Case:
3.1 The Petitioner and Respondent No.4 were married according to Muslim rites and rituals on 11th July 2010 in Valsad, Gujarat and that out of the said wedlock child named Mustali Mahuwala was born on 29.12.2013 in Dallas, Taxas, USA and he is at present 4 years old. The Respondent No.4 was earlier an Indian citizen who voluntarily surrendered her citizenship of India and accepted the citizenship of USA. That few months after the marriage, the relationship between the petitioner and Respondent 4 irretrievably broke down and the petitioner preferred divorce proceedings in the District Court in Dallas, County, USA which has been finally decreed by the the learned Court on 12.7.2018 and the marriage between the petitioner and the Respondent No.4 is dissolved. The learned Court has granted custody of the minor child in favour of the petitioner.
3.2 That during the pendency of the divorce proceedings, the Respondent No.4 was permitted by the Petitioner to travel to Australia with minor child for a limited period of 3 months i.e. 8.7.2017 to 08.10.2017. That the petitioner applied for overseas citizenship of India from Australia for herself and her minor child.
That the Respondent No.4 for an on behalf of the minor child has forged the petitioner's signature in the said application suggesting that the petitioner has consented for getting overseas citizenship of India. That the petitioner lodged complaint dated 15.9.2018 at Page 3 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENT Valsad City Police Station. That the petitioner had also preferred petition seeking writ of Habeas Corpus against the Respondent No.4 in the District Court at Dallas, County, Texas wherein vide order dated 12.9.2018 the notice has been issued to the Respondent No.4 for production of child before the Court at Texas.
Arguments for the Petitioner:
4. Learned Advocate for the petitioner has submitted that it is absolutely necessary and in the interest of justice that the life, liberty and welfare of the minor child is to be protected that too when the court at Texas, having categorically held that the minor child though generally is allowed to stay with the mother in the peculiar facts and circumstances of the case, was removed from the reach of the mother in the interest and benefit of the minor. He submitted that it probably the Respondent No.4 may run away from the jurisdiction of this Hon'ble Court and may even flee to Australia or some other country, where here relatives reside as her brother resides in Australia. Learned Advocate for the petitioner further submitted that having lost all the litigations in the USA, the Respondent No.4 has preferred to run away and come to India and she seeks shelter before the courts in Gujarat by suppressing the material facts. He therefore submitted that the custody of the child with Respondent No.4 is not only illegal but inequitable. The balance of convenience is in favour of the petitioner. The petitioner and the minor child will suffer grave, irreparable harm and injury, if the Respondent No.4 keeps the custody of the minor child. He therefore submitted that the Respondent No.4 be directed to produce the child before this court.
Page 4 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENT5. Learned Advocate for the petitioner has argued that the petitioner is a resident of Dallas, Texas USA. Presently he is residing in Ahmedabad at the address given in the cause-title. That the Respondent No.4 is residing at Valsad with minor child Mustali Mahuwala. That the child Mustali Mahuwala was born out of the wedlock of the Petitioner and Respondent No.4 and at present he is 4 years old. That the petitioner had filed the divorce proceedings in the District Court in Dallas, Texas, USA. The Respondent No.4 has contested the said petition. The learned Court at Texas vide final decree of divorce passed on 12.7.2018 dissolved the marriage solemnized between the petitioner and Respondent No.4. At that time the custody of the minor child was granted to the petitioner. During the pendency of the divorce petition, the Respondent No.4 was permitted by the Petitioner to Travel Australia with minor child for a limited period of three months. Thereafter she has taken the minor child to Australia. She has applied overseas citizenship of India from Australia. Thereafter she shifted to Valsad in India. That Respondent No.4 has retained the custody by means of illegal and inequitable act. That the balance of convenience is in favour of the petitioner. That the petitioner and the minor child will suffer grave irreparable harm and injury if Respondent No.4 keeps the custody of the minor child. It is further submitted that it is in the best interest of the child to have custody. That the petitioner is earning while Respondent No.4 is a housewife. He requested to allow the petition and hand over the custody of the minor child to the petitioner. That the Respondent has filed Application under the Guardians and Wards Act for appointment of Guardian before the Valsad Court. She has also filed an application under the Domestic Violence Act to harass the petitioner.
Page 5 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENTArguments of Respondent No.4:
6. Learned Advocate for Respondent No.4 submitted that Guardian Petition No.56 of 2018 is presently pending in the learned District Court at Valsad and that the Complaint under Section 12 of the Domestic Violence Act too is pending in the court of learned Chief Judicial Magistrate, Valsad. He submitted that when the Guartian Petition is pending before the learned District Court at Valsad, the present petition is wholly misconceived and premature and deserves to be dismissed. He further submitted that the case in the court at USA was not decided bipartite but was based on distorted and twisted facts on the part of the petitioner. He submitted that due to some disputes and differences between the parties, the same resulted in matrimonial discord. He further submitted that the lis deserves to be dealt with and decided by the learned Court, which has territorial and legal jurisdiction in the matter. That the custody of the child who is now five years old has to be with mother. He supported his argument by referring the judgment of the Bombay High Court in case of Mohmmad Shafi v. Shamin Banoo reported in AIR 1979 Bombay 156. He submitted that the Hon'ble Apex Court in catena of judicial pronouncements has held that such application is entertainable only within the jurisdiction of the competent court i.e. one within whose territorial jurisdiction the child whose custody or visitation rights are sought, ordinarily resides. He submitted that the learned District court at Valsad has the jurisdiction in the matter as the minor child resides with her mother at Valsad. Learned Advocate Mr. Trivedi has referred to and relied upon the following judgments:
(i) Ruchi Majoo v. Sanjeev Majoo - AIR 2011 SC 1952 Page 6 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENT
(ii) Mrs. Annie Besand v. Narayaniah -AIR 1914 PC 41
(iii) Mst. Jagir Kaur and Anr. v. Jaswant Singh - AIR 1963 SC 1521 6.1 Learned Advocate Mr. Trivedi therefore submitted that in view of the ratio laid down by the Hon'ble Apex Court the present petition deserves to be dismissed. He further submitted that the petitioner has shown ignorance of law and therefore on the said ground along the present petition deserves to be dismissed with heavy exemplary compensatory costs. He submitted that the decree of divorce was obtained fraudulently without making any maintenance for Respondent No.4 and the minor child.
(A) Illegal Confinement and power of High Court:
7. This court has come across the judgment reported in (2019) 7 SCC 42 in case of Tejaswini Gaud & Ors. v. Shekhar Jagdish Prasad Tewari and Ors. The Hon'ble Apex Court in paragraph 14, 19 and 20 has observed as under:
"14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.
19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which Page 7 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENT is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.
20. 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 arising out of the proceedings under the Guardians 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 writ court, 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 extraordinary 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."
8. The detention of minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for purpose of granting writ. Here, in this case, the mother has the custody of the child. Whether it can be said to be illegal detention? In our view it cannot be said to be illegal custody because the mother has a right to have a custody of his child up to 7 years under Mohmadon Law. For that purpose, we may refer the judgment of the Bombay High Court cited by learned Advocate for Respondent reported in AIR 1979 Bombay 156 in case of Mohammad Shafi v. Shamin Page 8 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENT Banoo. Considering the Mohamadan Law, the Bombay High Court has held that the male child who does not attain the age of 7 years and the female up to the age of puberty, the custody will remain with the mother. Here in this case, the age of the male child is below 7 years. Therefore, as per the Mohamadan Law, the mother is entitled to have the custody of the child and therefore it cannot be said that the custody of the child with his mother is illegal or that the child is illegally confined. The Hon'ble Bombay High Court in paragraphs 23, 24 and 25 has observed as under:
"23. The right of a Mohomedan female in regard to guardianship of the minors and their custody is to be found dealt with in para. 352 of Mulla's Mahomedan Law, Eighteenth Edition page 367. As regards the guardianship. The father under that law is the only person entitled to be guardian and the mother is not mentioned as one of the persons entitled to be a guardian of minor's person or property. The question of custody, however, is another matter and the law lays down that the mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven, years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child unless she marries a second husband when the right to custody goes to the putative father. In this case it is not disputed that the petitioner has not married a second time. It is also the case of the respondent that he has divorced the petitioner. I have already given the ages of the minors Waheeda Begum and Mahomed Raees. It cannot, therefore, be disputed that according to the personal law applicable to the parties, the petitioner was entitled to the custody of both the minors.
24. Now this custody to which a Maslim mother is entitled is even during the coverture and not only subsequently until she marries a second time. It the mother is not available or she cannot have the custody then as laid down in para 353, the custody goes to other female heirs, but does not go to the father and that right of custody of a female mother is defeated, only as laid down under para 354. The father's right to the custody arises only after the mother and the female relations laid down in paragraph 353 are Page 9 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENT unavailable.
25. It will thus be seen that even during the marriage the custody of the minor children in case of a boy until he attains the age of 7 years, and in the case of a female until she attains puberty is with the wife. The intention in conferring this custody upon the mother is obviously that she could (take) better care for the children than the father. It is significant that failing the mother also the father is- not the next preferential custodian, but other female relations. It seems to me, therefore, quite clear that so far as the personal law of Muslims is concerned, the right of the father to the custody of the child is deferred, and the primary right is in the mother and in the absence of the mother in other female heirs. This can be explained only on the basis that it is in the interest of the minor and, that it is these female relations or the mother who are capable of looking after the minor properly. In other words, therefore, as long as the right to custody is with the mother, the mother is deemed to be also having the custody and care of the minor. If that is so it seems to me that the mother during the period laid down by the Mahomedan Law has both the custody and the care of the minor as long as she is not disqualified from retaining the custody of the minor. If that is so, then at the time when the petitioner left the respondent's house either because she was driven away, as she says, or as the respondent says, she went of her own, she was deprived of the custody of her minor children Mahomed Races and Waheeda Begum. Mr. Sohoni, therefore, is not right in contending that the petitioner neither had the custody nor as he contends, was a guardian entitled to make an application."
(B) Grounds of Petition:
9. The petitioner has filed this petition on the ground mentioned in paragraph 17 as under:
"The Petitioner therefore states that the custody of the child with the Respondent No.4 is not only illegal but inequitable. The balance of convenience is in favour of the Petitioner herein. The Petitioner and the minor child will suffer grave, irreparable harm and injury, if the Respondent No.4 keeps custody of the minor child, This being the position, interim and ad-interim reliefs in terms aforesaid may be granted in favour of the Petitioner."
9.1 Considering this ground, the petitioner has only stated that Page 10 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENT the custody of the child is illegal and inequitable and the balance of convenience is in his favour. These two grounds relates to his status or his right. It does not disclose any welfare of the child.
9.2 The third ground as regards to the fact that the minor child will suffer grave and irreparable loss, harm and injury, but nothing is stated that as to how irreparable loss harm and injury will cause to the child. Therefore the ground shown in the memo of petition is not sufficient to restore the custody of the child.
(C) Alternative Remedy:
10.The petitioner has stated in paragraph 11 that of the memo of petition that he has preferred petition for writ of habeas corpus against Respondent No.4 in the District Court at Dallas, County Texas. The petitioner has also stated that vide order dated 12.9.2018 the District Court at Dallas, County Texas has issued a notice to Respondent No.4 to produce the child before that court. The notice is produced at Annexure-F in the present case. The present petitioner has stated in paragraph 20 and 21 of the memo of petition as under:
"20. The Petitioner submits that he has no other adequate, alternative or equally efficacious remedy available to him and that the reliefs prayed for herein, if granted, will be complete.
21. The Petitioner has not filed any other Petition on the subject matter of this Petition, either in this Hon'ble Court Court or in the Hon'ble Supreme Court of India."
11.The Petitioner has filed a writ of habeas corpus in foreign court which is pending in that court. In spite of this the petitioner has Page 11 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENT filed the present petition for the same cause of action. We are therefore of the view that the petition is not tenable in the eye of law as the petitioner has got an alternative efficacious remedy. It is pertinent to note here that as per paragraph 12 of the memo of petition, Respondent No.4 has also filed application under the Guardian and Wards Act for appointment of Guardian before the Valsad District Court and in the said application, notice is served to the present petitioner. In this case custody of child with the mother is presumed to be legal custody. The party may take appropriate civil remedy instead of availing writ jurisdiction. Because in civil court they may lead evidence about their right as well as welfare of the child.
(D) Direction of Foreign Court and Child Custody:
12.The Hon'ble Supreme Court in a judgment reported in (2017) 8 SCC 454 (Three Judge Batch) in case of Nithya Anand Raghavan v. State (NCT of Delhi) and anr. has observed in paragraph 40, 41, 42, 45, 46, 47, 48, 66 and 69 as under:
"40. The Court has noted that India is not yet a signatory to the Hague Convention of 1980 on "Civil Aspects of International Child Abduction". As regards the non-convention countries, the law is that the Court in the country to which the child has been removed must consider the question on merits bearing the welfare of the child as of paramount importance and reckon 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 exercise of summary jurisdiction, the Court must be satisfied and of the opinion that the proceeding instituted before it was in close proximity and filed promptly after the child was removed from his/her native state and brought within its territorial jurisdiction, 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 Page 12 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENT difference in language spoken or social customs and contacts to which he/she has been accustomed or such other tangible reasons. 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. Be it noted that in exceptional cases the Court can still refuse to issue direction to return the child to the native state and more particularly inspite 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 of harm. 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. In either situation - be it a summary inquiry or an elaborate inquiry - the welfare of the child is of paramount consideration. Thus, while examining the issue the Courts in India are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. We are in respectful agreement with the aforementioned exposition.
41. Notably, the aforementioned exposition has been quoted with approval by a three-judge bench of this Court in Dr. V. Ravi Chandran (supra) as can be discerned from paragraph 27 of the reported decision. In that, after extracting paragraphs 28 to 30 of the decision in Dhanwanti Joshi's case, the three-judge bench observed thus:
"27........However, in view of the fact that the child had lived with his mother in India for nearly twelve years, this Court held that it would not exercise a summary jurisdiction to return the child to the United States of America on the ground that its removal from USA in 1984 was contrary to the orders of US courts. It was also held that whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of the parties but on the sole and predominant criterion Page 13 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENT of what would best serve the interest of the minor."
(emphasis supplied) Again in paragraphs 29 and 30, the three-judge bench observed thus:-
29. While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, the court in the country to which 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 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 child including stability and security, loving and understanding care and guidance and full 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.
30. However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interests of the child. The indication given in Mckee v. McKee that there may be cases in which it is proper for a court in one jurisdiction to make an order directing that a child be returned to a foreign jurisdiction without investigating the merits of the dispute relating to the care of the child on the ground that such an order is in the best interests of the child Page 14 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENT has been explained in L (Minors), In re and the said view has been approved by this Court in Dhanwanti Joshi. Similar view taken by the Court of Appeal in H. (Infants), in re has been approved by this Court in Elizabeth Dinshaw." (emphasis supplied).
42. The consistent view of this court is that if the child has been brought within India, the Courts in India may conduct (a) summary inquiry or (b) an elaborate inquiry on the question of custody. In the case of a summary inquiry, the Court may deem it fit to order return of the child to the country from where he/she was removed unless such return is shown to be harmful to the child. In other words, even in the matter of a summary inquiry, it is open to the Court to decline the relief of return of the child to the country from where he/she was removed irrespective of a pre- existing order of return of the child by a foreign Court. In an elaborate inquiry, the Court is obliged to examine the merits as to where the paramount interests and welfare of the child lay and reckon the fact of a pre-existing order of the foreign Court for return of the child as only one of the circumstances. In either case, the crucial question to be considered by the Court (in the country to which the child is removed) is to answer the issue according to the child's welfare. That has to be done bearing in mind the totality of facts and circumstances of each case independently. Even on close scrutiny of the several decisions pressed before us, we do not find any contra view in this behalf. To put it differently, the principle of comity of courts cannot be given primacy or more weightage for deciding the matter of custody or for return of the child to the native state.
45. In a petition for issuance of a writ of habeas corpus in relation to the custody of a minor child, this Court in Sayed Saleemuddin v. Dr. Rukhsana & Ors. has held that the principal duty of the Court is to ascertain whether the custody of child is unlawful or illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. While doing so, the paramount consideration must be about the welfare of the child. In the case of Mrs. Elizabeth (supra), it is held that in such cases the matter must be decided not by reference to the legal rights of the parties but on the sole and predominant criterion of what would best serve the interests and welfare of the minor. The role of the High Court in examining the cases of custody of a Page 15 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENT minor is on the touchstone of principle of parens patriae jurisdiction, as the minor is within the jurisdiction of the Court (see Paul Mohinder Gahun Vs. State of NCT of Delhi 15 (2001) relied upon by the appellant). It is not necessary to multiply the authorities on this proposition.
46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the Court, in each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign Court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign Court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised.
47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child.
48. The next question to be considered by the High Court would Page 16 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENT be whether an order passed by the foreign court, directing the mother to produce the child before it, would render the custody of the minor unlawful? Indubitably, merely because such an order is passed by the foreign court, the custody of the minor would not become unlawful per se.
66. The invocation of first strike principle as a decisive factor, in our opinion, would undermine and whittle down the wholesome principle of the duty of the Court having jurisdiction to consider the best interests and welfare of the child, which is of paramount importance. If the Court is convinced in that regard, the fact that there is already an order passed by a foreign Court in existence may not be so significant as it must yield to the welfare of the child. That is only one of the factors to be taken into consideration. The interests and welfare of the child are of paramount consideration. The principle of comity of courts as observed in Dhanwanti Joshi's case (supra), in relation to non-convention countries is that the Court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign Court as only a factor to be taken into consideration. While considering that aspect, the Court may reckon the fact that the child was abducted from his or her country of habitual residence but the Court's overriding consideration must be the child's welfare.
69. We once again reiterate that the exposition in the case of Dhanwanti Joshi (supra) is a good law and has been quoted with approval by a three-judge bench of this Court in V. Ravi Chandran (supra). We approve the view taken in Dhanwanti Joshi (supra), inter alia in paragraph 33 that so far as non-convention countries are concerned, the law is that the Court in the country to which the child is removed while considering the question must bear in mind the welfare of the child as of paramount importance and consider the order of the foreign Court as only a factor to be taken into consideration. The summary jurisdiction to return the child be exercised in cases where the child had been removed from its native land and removed to another country where, may be, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education, - for these are all Page 17 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENT acts which could psychologically disturb the child. Again the summary jurisdiction be exercised only if the court to which the child has been removed is moved promptly and quickly. The overriding consideration must be the interests and welfare of the child."
13.Considering the factual aspects as well as legal aspects, ratio laid down in above referred judgments, arguments advanced by learned Advocates for the parties, the following facts emerge:
(a) As per para 8 of the petition the child is removed from the custody since 8.7.2017. The present petition is filed on 11.12.2018 i.e. after 1 year and 5 months. It cannot be said that petition is filed promptly and quickly after the child is removed from the custody.
(b) It is stated in para 1 of the affidavit - in - reply that,"the petitioner has had relations with a lady by the name of Zainab Ezzi in U.S.A. She used to visit the matrimonial home of the parties in U.S.A. And instigated the petitioner Murtuza Mahuwala to beat me and minor son Mustali. The same resulted in matrimonial discord."
Again this, the petitioner has stated in affidavit in rejoinder that, "Respondent No.4, she has narrated that all disputes started between them due to a person named Zainab Ezzi. By raising this kind of extraneous issues, the Respondent No.4 is trying to divert the attention of the Hon'ble Court from the real issue of custody of minor child."
It appears that petitioner has not specifically denied the fact that Page 18 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENT she and minor son Mustali were beaten due to instigation of one Zainab Ezzi.
Now taking into this situation we are satisfied that the child's return may expose him to a grave risk of harm. Therefore it will be appropriate to refuse to issue the direction to return the child to native state and more particularly inspite of a preexisting order of the Foreign court.
(c) Considering the above episode we see the paramount consideration i.e. welfare of child Mustali is with the mother and not to change the custody by handing over custody to petitioner.
(d) Considering the time laps from removing the child from the custody of petitioner, the child is now settled in its new environment. It will harm to its physical and psychological harm or it will be an intolerable position to child.
(e) The petitioner has filed writ of habeas corpus in the foreign court which is pending for consideration.
(f) The custody of child with mother cannot be said to be illegal confinement or illegal custody.
(g) The petitioner has not shown any circumstance which can harm the custody of child with mother.
(h) The petitioner has not shown any of the circumstance which is in his favour and which provide welfare of the child.
(i) In view of Mohamdan law i.e. personal law, the custody of male child below 7 years of age be given to mother. So mother is entitled to hold the custody of the child.
Page 19 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020 R/SCR.A/10944/2018 CAV JUDGMENTConsidering the above discussions, we are of the view that the petition fails and deserves to be dismissed and accordingly stands dismissed. Notice is discharged. We have considered present situation and decided this Special Criminal Application. We made it clear that parties are at liberty to lead evidence before the appropriate court in pending proceeding under law.
(S.R.BRAHMBHATT, J) (V. P. PATEL,J) J.N. W Page 20 of 20 Downloaded on : Thu Feb 20 04:54:37 IST 2020