ALEYAMMA KURUVILLA Vs. PENNAMMA THOMAS

JUDGEMENT

(1.) This is a Habeas Corpus Application filed under Art.226 of the Constitution of India by the mother of three Children. The petitioner, who is the mother, is a citizen of the United States of America with effect from 24-6-1987. All the three children were born in America, and they are having American passports. The children were brought to India in very peculiar circumstances.

(2.) In America, there were certain differences between the petitioner, and her husband, who is also an Indian from Kerala. During the course of these differences, the husband filed a case against his wife, the petitioner in this O.P., that she tried to poison him and the children. A criminal case was filed against the petitioner. But the petitioner was discharged as per Ext. P4 order of the American Court dated 25-2-1987. It was during the period before the discharge of the petitioner that the husband brought the children to India on 7-9-1985.

(3.) Subsequently, there was an order, Ext. P5 dated 9-7-1987 by the Supreme Court of the State of New York. In that order (page 53 of the paper book) the Supreme Court held that matrimonial .issue between the parties has to be referred to a Family Court, but that in the meantime, it was inappropriate for the husband to remove the children from the jurisdiction without affording the mother the due process rights afforded to her under the law of the State of New York. Accordingly, the husband was ordered under penalty of either criminal or civil contempt to forthwith take immediate steps to have the aforesaid three children returned to the court jurisdiction. The husband was also ordered to deliver forthwith to the clerk of that Court his passport. The court further ordered pursuant to S.651 of the Family Court Act that the matter be referred to the Family Court of the City of New York. The court felt that it would be for the Family Court to appoint a law guardian to represent the interests of these three children.