SAIHBA ALI Vs. STATE MAHARASHTRA

JUDGEMENT

(1.) In this petition under Article 32 of the Constitution of India, the petitioner primarily seeks a writ in the nature of habeas corpus directing respondents Nos. 2 and 4 to produce her minor children and handover the custody of the said minor children to the petitioner along with their passport and travel documents. The petition is based on the fact that the petitioner is the natural mother and de facto guardian of the minor children and that her husband is serving a jail-term in the United States of America, and that she has obtained an order of the competent Court in the USA for the custody of the minor children, therefore, their custody with the second respondent is an illegal custody, consequently she is entitled to the relief prayed for by her in the above petition.

(2.) Respondent No. 4 who is the paternal grandmother of the children in question, has filed a counter and has brought to our notice that the children in question are in her custody by virtue of an order made by a competent Family Court at Nagpur in a petition filed by her son to which petition the writ petitioner was a party, and though the said writ-petitioner has challenged the said order of the Family Court in appeal before the High Court of Bombay, Nagpur Bench, she withdrew the same, hence, the said order of the Family Court granting custody to her has become final so the custody of the children with her was not in any manner illegal, consequently the petition in the nature of habeas corpus is not maintainable. She also contended that the Family Court while granting the custody of the minor children to her has taken note of the order made by the Court in the USA in regard to custody of the children which order the Family Court had held to be one without jurisdiction and not a decree, notice of which can be taken by Indian Courts under Section 13 of the C.P.C.

(3.) We have heard the arguments of the learned counsel for the parties and are in agreement with the submissions made on behalf of respondent No. 4. The custody of the minor children having been awarded to the 4th respondent by a competent Court, cannot be said to be an illegal custody, unless and until the petitioner gets that order set aside. Therefore, in our opinion, the petitioner cannot seek relief in this habeas corpus petition.