RAJKUMAR SASIDHARAN Vs. SUPERINTENDENT OF POLICE

JUDGEMENT

(1.) Marital discords are more challenging to the offspring, who are not even represented, especially when questions of custody arise. Hence the Hon'ble Supreme Court has, oftener than ever emphasized the onerous duty cast on the Courts, exercising parens patriae jurisdiction, to keep in mind the profound and dominant aspect of the welfare of the minor. We would have normally not entertained the Habeas Corpus petition, but for the peculiar facts arising herein where the child born to Indian parents, is an American citizen, by virtue of his birth in that country. The parents were residing in that country when the mother along with the child travelled to her native place and took a conscious decision not to return. The mother settling down in her parental house, approached the local Family Court for divorce and guardianship of the minor child. The father, much later, approached the Superior Court of California and obtained an order against the mother commanding her to produce the child illegally detained by her. The father after two years approached this Court with this petition inter alia challenging the jurisdiction of the Family Court at Thiruvananthapuram, wherein the applications for divorce and guardianship were filed. The father on the principle of comity of courts seeks a Writ of Habeas Corpus for the production of the minor child from the alleged illegal custody of the mother, to facilitate repatriation to his own country subject to further orders from the foreign Court which has issued a Writ of Habeas Corpus as available at Ext.P14.

(2.) Learned Counsel for the petitioner, father of the child, contends that the Family Court, Thiruvananthapuram does not have jurisdiction to entertain the application filed for determination of guardianship under the Guardians and Wards Act, 1819 (for brevity 'G & W Act'). Section 9 of the G & W Act confers jurisdiction on the District Court, now a Family Court, in respect of guardianship of a minor, having jurisdiction in the place where the minor ordinarily resides. It cannot be said that the minor herein, an American citizen is a resident of Thiruvananthapuram. The child had been taken away from his natural habitat and within a month of his arrival in this country, that too his first entry, the mother approached the Family Court at Thiruvananthapuram where her parents are residing. To advance the above proposition the learned Counsel relies on ( Jeewanti Pandey vs. Kishan Chandra Pandey , 1981 4 SCC 517). In similar circumstances, the Hon'ble Supreme Court in Lahari Sakhamuri vs. Sobhan Kodali , 2019 AIR(SC) 2881 held that the minor children who were taken away from the foreign country by the mother cannot be said to be ordinary residents of Hyderabad wherein the mother, after coming to India, set up her residence.

(3.) Shilpa Aggarwal vs. Aviral Mittal , 2010 1 SCC 591 again was a case in which the couple on their volition set up their matrimonial home in the foreign country from where one of the spouses stealthily brought the child back to India. The High Court as also the Supreme Court concurrently found in favour of repatriation and custody of the child being subjected to the jurisdictional Court in the foreign country. A host of other decisions were cited at the Bar with special emphasis on Yashitha Sahu vs. State of Rajasthan (C.A No. 127/2020 dated 20.01.2020) and Neelanjan Bhatacharya vs. State of Karnataka,2020 SCCOnlineSC 928. It was argued that the respondent mother had subjected herself to the jurisdiction of the foreign Court; nay invoked its jurisdiction insofar as the claim raised for maintenance in proportion to the income of the petitioner.