EUGENIA ARCHETTI ABDULLAH Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is a U.S. citizen. She has approached this Court with this Writ Petition seeking to issue a writ of Habeas Corpus or any other writ or direction commanding respondents 2 to 4 to produce two infants named Roshan and Nishant before this Court and to handover their custody with their passports to the petitioner, their mother.

(2.) According to her, herself and 2nd respondent Jamshed Ahamed Abdullah got married while in United States. Thereafter, both of them went to Behrain in connection with the employment of the latter. While in Behrain she gave birth to the said two children, twins. Because of the shift of his employment, they went back to the State of Texas in United States and settled there. According to the petitioner, their married life was not happy, as there was domestic violence from the part of the 2nd respondent. This resulted in a criminal case. Finally, the matter was patched up. Unfortunately, the second respondent lost his employment in Texas. He had to seek another employment. Anyhow, both of them with their children, visited India and came to Kozhikode where the second respondent did have his roots. While so, according to the petitioner, there was again ill treatment from the part of the second respondent and she was thrown out of the residential house and finally, she had to fly to United States without the children. The second respondent, with the children continued in Kozhikode. According to her, the custody of the children with the second respondent is an illegal custody and thus they are illegally detained. Being the mother, the petitioner is entitled to the lawful custody of the children. As the children were born in America, their native place is United States and therefore, their custody shall always be with the mother, the petitioner, who is employed and lives there. They are being illegally detained beyond their motherland. So the children shall be taken out of the illegal custody of the second respondent, though their father, and given back to the petitioner. She has already moved a petition for custody of the children as well as for dissolution of the marriage with the second respondent, in accordance with the Family Law applicable in the State of Texas in United States.

(3.) This petition is resisted by the second respondent contending that the custody of the minor children with the father cannot be termed as "illegal custody" or "illegal detention". Father is always entitled to the custody of his minor children. According to him, there was domestic violence from the part of the petitioner and he had never ill treated her. Even while in Kozhikode, they were leading happy life and the petitioner had to leave India in order to continue her employment in Texas. According to him, there was loving communications between the two, enquiring about the well being of the children. These are sufficient to indicate that the allegation of the petitioner that she had been thrown out of the residence at Kozhikode is false. It is further contended that the dispute raised by the petitioner with regard to the custody of the children, whether they shall be with the mother or with the father, is not a matter for a petition to issue a writ in the nature of Habeas Corpus. It can only be decided taking evidence, in a proceedings relating to a family dispute. So, this petition itself is not maintainable, he submitted. It is further contended that merely because the children are of less than three years of age, the mother is not indisputably entitled to the custody of the children. When the petitioner had already moved the Family Court in Texas, another proceeding for custody of children in another country like India is not maintainable and cannot be entertained. The second respondent is prepared to appear through Pleader in the Court at Texas and the matter shall be decided and he is prepared to abide by the order whatever the Family Court at Texas may pass. It is further submitted that the children are loving more towards the father rather than the mother. Because of that bondage, shifting of the children from the father to the mother may affect them adversely. It is also contended that this petition by a foreigner is not maintainable. Decisions reported in Sumedha Nagpal v. State of Delhi ( 2000 (9) SCC 745 ), Dr. Veena Kapoor v. Sri Varinder Kumar Kapoor ( 1981 (3) SCC 92 1 ), Saritha Sharma v. Sushil Sharma ( 2000 (3) SCC 14 ) and Syed Saleemuddin v. Dr. Rukhsana ( 2001 (5) SCC 247 ) are relied on.